22.10.2011   

EN

Official Journal of the European Union

C 311/27

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Set aside the judgment of the General Court (Sixth Chamber, extended composition) of 16 June 2011, notified to the Commission on 20 June 2011;

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Refer the case back to the General Court for reconsideration;

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Reserve the decision on costs in both sets of proceedings;

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In the event that the Court finds that it can adjudicate on the substance, dismiss the action brought at first instance and order Edison SpA to pay the costs of both sets of proceedings.

(i)

The General Court infringed Article 253 EC, in conjunction with Article 84 EC, in that it erred in its assessment of the purpose and scope of the obligation to state reasons with regard to the attribution of liability for infringements of Article 81 EC to the company holding all the capital in the company which participated directly in the infringement, which is based on a presumption which must be adequately rebutted. In particular, the General Court failed to take account of context and legal rules governing the matter, especially the burden of proof on the applicant. It erred in finding that the Commission was under a duty to state reasons in relation to arguments that were ‘not insignificant’, without requiring, as it should have required, that such arguments were capable of rebutting the presumption of liability on the part of the controlling company.

(ii)

In the alternative, the General Court infringed Articles 230 EC and 253 EC, in that it reached the conclusion that inadequate reasons were given for the contested decision. First, it erred in law in its reading of the contested decision, neglecting to consider certain relevant passages. Second, it confused issues of reasoning and issues of substance in refusing to take account of explanations provided in the contested decision, finding either that the Commission had acted in breach of the appellant’s rights of defence, or that such explanations were not convincing.

(iii)

The General Court infringed Articles 230 EC and 253 EC and the principles of European Union law on the rights of the defence and the right to be heard before the courts of the European Union. Indeed, it incorrectly held that the Commission could not rely on arguments not referred to in the statement of objections or not repeated in the decision to address the appellant’s arguments intended to rebut the presumption of liability on the part of the controlling company. That applies in particular where, as in the present case, there are documents relied on by the applicant or of which it was aware and the applicant could not have been unaware of the risk that the Commission might take them into account as evidence against it, or where it could reasonably infer from the documents in question the conclusions which the Commission intended to draw from them.

(iv)

The General Court infringed Article 230 EC, in conjunction with Articles 231 EC and 253 EC, incorrectly holding that it was necessary to annul the contested decision on the ground that it contained an inadequate statement of reasons, even though the approach adopted in the decision was substantively correct.