23.6.2007

EN

Official Journal of the European Union

C 140/30

(Case T-121/07)

(2007/C 140/51)

Language of the case: French

Parties

Applicant: Alstom (Levallois Perret, France) (represented by: J. Derenne, lawyer, W. Broere, Solicitor, and A. Müller-Rappard and C. Guirado, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul Articles 1(b), 2(b) and 2(c) of the contested decision;

—in the alternative, substantially reduce the fines imposed on Alstom;

—order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, the applicant seeks partial annulment of Commission Decision C(2006) 6762 Final of 24 January 2007, relating to a proceeding under Article 81 of the EC Treaty and Article 53 EEA (Case COMP/F/38.899 — Gas Insulated Switchgear), concerning a cartel in the gas insulated switchgear projects sector entailing manipulation of the bidding procedure for those projects, price fixing, the allocation of quotas and of projects, and exchanges of information. In the alternative, the applicant seeks the annulment or reduction of the fine imposed on it by the contested decision.

In support of its claims, the applicant raises eight pleas in law.

The first alleges infringement of the rules relating to judicial protection and of the general principle of the ‘right to an effective remedy’, in that, by imposing a joint fine on two companies which are both legally and economically independent, the Commission has created a situation in which any possible benefit for the applicant of an action against the decision will depend exclusively on the outcome of the action of an independent third party.

The second plea alleges infringement of the legal rules applicable to joint and several liability, in that the Commission has made two companies, with no legal link between them, jointly and severally liable for the same infringement, in breach of the principle of legal certainty and the principle that penalties must fit the offence.

By its third plea the applicant criticises the Commission for having infringed Article 253 EC in that it did not explain how the evidence adduced by the applicant to show that it had no decisive influence over its wholly-owned subsidiaries were not sufficient to rebut the presumption on this issue.

The applicant's fourth plea alleges infringement of Article 81 EC and, in particular, of the rules relating to the imputability to parent companies of the infringements committed by their subsidiaries, and also of the rules relating to the transfer of liability for infringements.

By its fifth plea the applicant claims that the contested decision infringes the rules applicable to the recognition of aggravating conditions for activities of the ‘cartel ringleader’ together with the principle of equal treatment. The applicant alleges that the Commission was wrong to attribute the role of ringleader to the applicant and that its role as ‘European secretary’ of the cartel was purely administrative and was not such as to confer on it a more important role than the roles of other members of the cartel. Consequently, the applicant maintains that the Commission made an error of assessment, that it misapplied the applicable rules and that it did not give a sufficiently reasoned decision on that point.

The applicant also claims that the Commission infringed rules of law with regard to proof of the continuity of the infringement in that it did not provide evidence relating to facts which were sufficiently close in time to establish that the infringement was continuous.

The seventh plea relied upon by the applicant alleges infringement of the rights of the defence in that, according to the applicant, the contested decision is based on certain pieces of information which were not contained in the Commission's statement of objections, and with regard to which, the Commission did not inform the applicant of the consequences which it would draw from them in its decision.

Finally, by its eighth plea, the applicant alleges that the Commission infringed the rules relating to the calculation of the basic amount of the fines, in that the contested decision determined the amount of the fine, for the entire period of the infringement, on the basis of the turnover achieved within the European Economic Area, when the EEA Agreement has been in force only from 1 January 1994.