Areva and Alstom, two of the participants in the gas insulated switchgear cartel, have appealed the judgment of the General Court ('GC') dated 3 March 2011 on the fines levied upon them by the Commission in 2007. ( Issue 512) The details of the appeals were published on 1 July 2011 and have challenged, among others, the findings of the GC in relation to the joint and several liability of parent companies, attribution of liability, and fines.
Areva has appealed on various grounds that seek to partially annul the GC's judgment and further reduce the fine that has been imposed. Areva has questioned the statement of reasons issued by the GC which appears to contain additional reasoning from the GC that was not in the original EC decision. Further it has been alleged that the GC has infringed Areva's rights of defence in the analysis of the effective influence Areva SA exercised over subsidiary companies, by refusing the company the opportunity to respond to the new arguments included by the GC. A third ground of appeal is the imposition of fines by the GC which in effect created de facto joint and several liability between two companies that were never part of a single economic unit. In addition it suggests that the GC has erred in law in interpreting the Commission decision by running contrary to the Commission's decision simply in order to reach a "solution". Finally, drawing on the principles of proportionality and equal treatment, Areva is contesting the assessment of the duration of the infringement and thus the fine imposed.
Alstom's appeal is also based largely on the GC's decision on attribution of liability as well as joint and several liability. More specifically however, it alleges the GC has failed to consider evidence adduced by it to rebut the presumption of exercise of decisive influence over its subsidiaries and repeated the stance adopted vis-à-vis Areva in relation to de facto joint and several liability. It further argues that by using the principle of joint and several liability to assess the fines payable by companies, the GC has essentially delegated the Commission's powers to determine the attribution of liability of each undertaking in question. Lastly it claims the GC has addressed a plea which was not raised and instead failed to address its plea alleging a breach of the right to an effective remedy and to judicial protection.
It appears likely that it could take up to 3 years for the final decision to be handed down by the Court of Justice.
To view Community Week, Issue 528; 8th July 2011 in full, Click here.
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