19.11.2011

Official Journal of the European Union

C 340/12

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(Case C-508/11 P)

2011/C 340/22

Language of the case: Italian

Parties

Appellant: ENI SpA (represented by: G.M. Roberti, D. Durante, R. Arras, E. D’Amico, I. Perego, avvocati)

Other party to the proceedings: European Commission

Form of order sought

—set aside in whole or in part the judgment under appeal in so far as it dismissed the action brought by ENI in Case T-39/07 and, consequently:

—set aside in whole or in part the Commission Decision of 29 November 2006 (Case COMP/F/38.638 — BR/ESBR); and/or

—annul, or at least reduce, the fine imposed on ENI by the Commission Decision of 29 November 2006 (Case COMP/F/38.638 — BR/ESBR);

—in the alternative, set aside in whole or in part the judgment under appeal in so far as it dismissed the action brought by ENI in Case T-39/07 and refer the case back to the General Court for an adjudication on the merits in the light of the guidance with which the Court will provide it;

—order the Commission to pay the costs, both of the present proceedings and of the proceedings in Case T-39/07.

Pleas in law and main arguments

By the first ground of appeal, which is subdivided into four parts, ENI claims that the General Court erred in law on a number of points and acted in breach of its obligation to state reasons, and also of the fundamental principles laid down in the EU Charter of Fundamental Rights and the ECHR, to the detriment of ENI’s rights of defence. ENI submits that:

—the presumption that a parent company has actually exercised decisive influence is not justified in the light of the principles governing the attribution of antitrust liability and the principles governing presumptions, as they have evolved in the case-law of the ECHR; in any event, the General Court failed to rule on the arguments put forward by ENI at first instance concerning the scope of the requirement that decisive influence must actually have been exercised;

—the evidence adduced by ENI for the purposes of rebutting the presumption of liability was not weighed correctly: the General Court disregarded the rules as developed in the relevant case-law of the Court of Justice and the General Court itself;

—albeit holding, on the basis of the case-law, that the presumption of liability is relative, the General Court distorted the true scope of that presumption when applying it, thereby requiring ENI to meet a standard of proof to the contrary which was impossible to satisfy and giving rise to the application of rules based on strict liability;

—the General Court found, without stating the reasons for that finding, that it did not have to assess the arguments raised before it by ENI regarding the relevance of the principle of limited liability of companies for the purposes of attributing liability to the parent company by reason of the presumption that it had actually exercised decisive influence, and incorrectly applied the legal criteria derived from the case-law relating to corporate succession in competition law.

By the second ground of appeal, which is subdivided into two parts, ENI claims that the General Court infringed Article 23 of Regulation No 1/2003 and acted in breach of the principle of proportionality and the obligation to state reasons. In particular, ENI claims that the General Court:

—assessed incorrectly the gravity of the infringement for the purposes of determining the amount of the fine, thereby denying — without stating reasons — the relevance of the evidence put forward on that point by ENI and of the arguments put forward regarding the disproportionate nature of the multiplier applied;

—in disregard of the criteria derived from the case-law, based the exclusion of Syndial from the list of addressees of the contested decision on corporate succession, without taking account of the consequences entailed for the maximum amount of fine.

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(1)

OJ 2003 L 1, p. 1.

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