Case C‑351/15 P

European Commission

v

Total SA
and
Elf Aquitaine SA

(Appeal — Agreements, decisions and concerted practices — Market for methacrylates — Fines — Joint and several liability of parent companies and their subsidiary for the latter’s unlawful conduct — Payment of the fine by the subsidiary — Reduction of the amount of the subsidiary’s fine following a judgment of the General Court of the European Union — Letters from the accountant of the European Commission demanding payment by the parent companies of the amount it repaid to the subsidiary plus default interest — Action for annulment — Challengeable acts — Effective judicial protection)

Summary — Judgment of the Court (First Chamber), 19 January 2017

1. Appeal—Grounds—Inadequate or contradictory grounds—Admissibility

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

2. Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. Appeal—Grounds—Mere repetition of the pleas and arguments put forward before the General Court—Inadmissibility—Challenge to the interpretation or application of EU law by the General Court—Admissibility

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

4. Actions for annulment—Actionable measures—Concept—Measures producing binding legal effects—Letters from the Commission, following the reduction and partial repayment of the fine initially paid by the subsidiary, demanding payment by the parent companies of default interest—Included

   (Art. 263 TFEU)

1.  See the text of the decision.

   (see para. 19)

2.  See the text of the decision.

   (see para. 19)

3.  See the text of the decision.

   (see paras 30, 31)

4.  In order to determine whether an act may be the subject of an action for annulment, importance must be given to the substance of that act, the form in which an act or decision is adopted being in principle irrelevant to the right to challenge such acts. Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment. Thus, an action for annulment is, in principle, only available against a measure by which the institution concerned definitively determines its position upon the conclusion of an administrative procedure. On the other hand, intermediate measures whose purpose is to prepare for the definitive decision, or measures which are mere confirmation of an earlier measure or purely implementing measures, cannot be treated as acts open to challenge, in that such acts are not intended to produce autonomous binding legal effects compared with those of the act of the EU institution which is prepared, confirmed or enforced.

   The letters by which the Commission demands the payment of default interest by the parent companies with regard to a fine, imposed on their subsidiary, but for which those companies are jointly and severally liable, must be regarded as producing binding legal effects of such a nature as to affect the interests of the parent companies, by bringing about a distinct change in their legal position, where the original amount of the fine was paid in full by the subsidiary and, therefore, the commission was no longer entitled to claim the payment of default interest from the parent companies. Therefore, the General Court has not committed an error of law by treating such letters as challengeable acts within the meaning of Article 263 TFEU.

   (see paras 35-37, 40, 45, 48, 49)