24.3.2012   

EN

Official Journal of the European Union

C 89/16

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Declare the present appeal admissible.

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Set aside the judgment of the General Court of the European Union of 16 November 2011 in Case T-78/06 Álvarez v Commission and, consequently, annul Commission Decision C(2005) 4634 final of 30 November 2005 in Case COMP/F/38.354 in so far as liability is attributed to Armando Álvarez, S.A.

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Order the Commission to pay the costs of both sets of proceedings.

1.

Main ground of appeal , alleging an error of law and infringement of the rights of the defence in the analysis of whether liability for the infringement could be attributed to the appellant.

The General Court attributed liability for the infringement to Armando Álvarez as a direct participant in the cartel, thereby upholding not only fresh pleas in law, but also grounds for attributing liability to Armando Álvarez different from the ground established in the contested decision. In addition, the General Court rejected the arguments in the application, holding that they were insufficient to rebut the presumption that Armando Álvarez exercised actual control over its subsidiary. However, since there was no presumption, in the Commission’s decision, to the effect that the appellant exercised actual control over the subsidiary, it was not for the appellant to rebut such a presumption, but rather the burden of proof rested entirely upon the Commission.

In so doing, the General Court misapplied the concepts of participation in an infringement and the attribution of such participation, and infringed the appellant’s rights of defence.

2.

Alternative ground of appeal , alleging failure to provide reasons in relation to the arguments that Armando Álvarez lacked actual control over Aspla.

Alternatively, if liability must be attributed to Armando Álvarez directly for infringement of Article 101 TFEU, and the presumption of parent-subsidiary liability applied, quod non, the General Court simply held that the arguments relied on by Armando Álvarez did not call in question its liability, without assessing the arguments actually put forward in the application for annulment. Consequently, the appellant submits that there is a clear failure to state reasons in the judgment under appeal.