Action brought on 21 December 2009 - Alstom v Commission

(Case T-517/09)

Language of the case: French

Parties

Applicant: Alstom (Levallois Perret, France) (represented by: J. Derenne and A. Müller-Rappard, lawyers)

Defendant: European Commission

Form of order sought

Annul the Commission decision of 7 October 2009 in Case COMP/F/39.129 - Power Transformers; and

Annul the decision of the Commission's accounting officer of 10 December 2009;

Order the Commission to pay the costs.

Pleas in law and main arguments

By the present action, Alstom requests, first, the annulment of Commission Decision C(2009) 7601 Final of 7 October 2009 - Power Transformers, relating to a proceeding under Article 81 EC (now Article 101 TFEU) and Article 53 EEA, concerning an agreement on European market for power transformers and, saecondly, the annulment of the decision of the Commission's accounting officer of 10 December 2009 rejecting Alstom's request to provide a financial guarantee during the proceedings initiated by the present application.

In support of its action for annulment of the Commission decision of 7 October 2009, the applicant raises three pleas in law alleging:

-    an infringement of the legal rules applicable to joint and several liability, in that the Commission made two companies jointly and severally liable for the same infringement which the Commission was not able, individually and independently, to hold directly and formally responsible for the infringement;

-    an infringement of Article 296 TFEU in that the contested decision is vitiated by:

an insufficient statement of reasons regarding the existence of an effect on trade between Member States;

a failure to state reasons concerning the Commission's claim that Alstom failed to rebut the presumption that the parent company is liable for the actions of the subsidiary and failed to demonstrate the subsidiary's independence;

inconsistent reasons regarding the concurrent liability of Alstom and Alstom T&D SA;

-    an infringement of Article 101 TFEU in relation to the rules concerning whether parent companies are answerable for infringements committed by their subsidiaries in that the Commission relied on case-law which infringed European Union law and should therefore be excluded for having created, by judicial decision, a principle of irrebutable presumption based not on independence or market behaviour but on economic, legal and organisational links, which are characteristics common to all groups of undertakings.

In support of its action for annulment of the decision of the Commission's accounting officer of 10 December 2009, the applicant raises the following pleas in law alleging:

-    a lack of legal basis in that the decision to reject the request to provide a financial guarantee during the proceedings for annulment of the Commission decision of 7 October 2009 was not based on law, neither on Council Financial Regulation No 1605/2002 ¹ nor on Commission Regulation No 2342/2002, as amended by Regulation No 1248/2006 ², which implemented it;

-    an infringement of the principle of protection of legitimate expectations in that the accounting officer's decision failed to have regard to the justified hopes resulting from the Commission's previous practice;

-    an infringement of the principle of equality in that the Commission accounting officer's new approach, in the absence of prior publicity or transitional measures, would place Alstom in an unequal situation compared with those subject to fines who could have provided a financial guarantee prior to that change of approach;

-    an infringement of the obligation to publicly correct an error of interpretation where the General Court held that the Commission's previous practice was not consistent with the applicable financial regulation.

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¹ - Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

² - Commission Regulation (EC, Euratom) No 1248/2006 of 7 August 2006 amending Regulation (EC, Euratom) No 2342/2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2006 L 227, p. 3).