13.2.2010

Official Journal of the European Union

C 37/27

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(Case C-520/09 P)

2010/C 37/34

Language of the case: French

Parties

Appellant: Arkema France SA (represented by: M. Debroux, avocat)

Other party to the proceedings: European Commission

Form of order sought

—Set aside the judgment of the Court of First Instance of 30 September 2009 in Case T-168/05;

—Order the Commission to pay all costs.

Pleas in law and main arguments

The appellant submits four pleas in law in support of its appeal.

By its first plea, the appellant complains that the Court infringed the rules on the imputability of the anti-competitive practices of a subsidiary to its parent company. It submits in this respect that there is a contradiction in the very wording of the judgment under appeal since the Court holds, in that judgment, that the presumption that the parent company has decisive influence over its subsidiary is a simple presumption that may be rebutted by the parent company and/or the subsidiary adduce evidence showing that the subsidiary acts independently, while holding, at the same time, that the very role of a parent company is to ensure that the subsidiaries within a group of companies are run as one, in particular through budgetary control. That gives rise, de jure, to a non-rebuttable presumption that the parent company has decisive influence over its subsidiaries and, in the light of the Court’s assertion to that effect, it is impossible for a subsidiary to prove that its conduct on the market is independent.

By its second plea, Arkema submits that there has been an infringement of the principle of non-discrimination resulting from the non-rebuttable nature of the presumption that the parent company has decisive influence over its subsidiaries since, because of that presumption, the members of a cartel are treated differently depending on whether they belong to a group of companies or not.

By its third plea, the appellant submits that the judgment under appeal infringes the principles of equal treatment and the right to a fair hearing in that, in response to the appellant’s plea alleging that there has been an infringement of essential procedural requirements because of the failure to provide a statement of reasons, the Court examined only the arguments submitted by Elf Aquitaine, the parent company of Arkema, and not those submitted by the latter itself. Whilst it is true that the Court is not required to set out, in an exhaustive manner, all the arguments submitted by the parties to the dispute, the fact remains that the grounds of the judgment under appeal must, at least, put the appellant in a position to know precisely the reasoning that the Court has followed with respect to it.

By its fourth and last plea, Arkema claims, finally, that there has been an infringement of the principle of proportionality, in that its turnover was taken into account twice by the Commission when it determined the basis on which the fine was assessed, and that the Court committed an error when it confirmed that the Commission had no other choice if it wanted to apply the method for setting fines set out in the guidelines. In doing so, the Court bestowed on the Commission’s guidelines an absolute binding force that they do not have. According to the appellant, such guidelines are more like rules of conduct giving an indication of the practice to be followed and not legal rules which the administration must follow under any circumstances.

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