Appeal brought on 27 May 2011 by Kaimer GmbH & Co. Holding KG and Others against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-379/06 Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG, Sanha Italia Srl. v European Commission

(Case C-264/11 P)

Language of the case: German

Parties

Appellants: Kaimer GmbH & Co. Holding KG, Sanha Kaimer GmbH & Co. KG, Sanha Italia Srl. (represented by: J. Brück, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

Set aside the judgment of the General Court of 24 March 2011 in Case T-379/06 Kaimer and Others v Commission in so far as the action was dismissed, and annul Commission Decision C(2006) 4180 of 20 September 2006 (Case COMP/F-1/38.121 - Fittings);

in the alternative, set aside the judgment of the General Court of 24 March 2011 in Case T-379/06 Kaimer and Others v Commission in so far as the action was dismissed, and reduce the fine imposed under Article 2 of Commission Decision C(2006) 4180 of 20 September 2006 (Case COMP/F-1/38.121 - Fittings);

in the further alternative, refer the case back to the General Court for reconsideration;

order the respondent to pay the costs of the proceedings.

Pleas in law and main arguments

The present appeal has been brought against the judgment of the General Court dismissing in part the appellants' action challenging Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 - Fittings).

The appellants raise three pleas in law.

By their first plea in law, the appellants complain of the distortion of evidence by the General Court. The General Court based its assumption regarding the starting date of the infringement on a particular piece of evidence. Contrary to the clear wording of that evidence, the General Court regards it as proof of the starting date of the infringement. A correct assessment of the evidence would suggest precisely the opposite, namely that there was uncertainty on the market about the appellants' conduct on the market. A correct assessment of the evidence is possible on the basis of the document itself, without any further evidence being required.

By their second plea in law, the appellants object to the erroneous assessment of the probative value of leniency statements. The grounds on which the second plea in law is based are twofold. First, the General Court erred in law in attributing special probative value to the leniency statements. The relevant leniency statements in the present proceedings were made by leniency applicants who had to offer the Commission added value in order to obtain the highest possible reduction in fines, resulting in an excessive tendency to apportion blame in the statements and not, therefore, in any special probative value. The General Court did not address that point in the grounds of its judgment.

Second, the General Court did not resolve an inconsistency between the individual leniency statements, as a result of which the grounds of the judgment are erroneous and incomplete. The first applicant for leniency in the proceedings did not name the appellants as participants in the infringement even though it made a full statement and, as a result, obtained full immunity from the fine. The allegations of fact vis-à-vis the appellants are based on the statements of subsequent leniency applicants. That inconsistency ought to have been resolved, particularly where the statement of the first undertaking to cooperate with the Commission is deemed to have special probative value.

By their third plea in law, the appellants allege infringement of the Charter of Fundamental Rights and of the European Convention on Human Rights ('ECHR'). The appellants regard this overriding legislation as having been infringed in two respects. First, the plausibility check carried out by the General Court in cartel fine proceedings does not satisfy the requirements of the Charter of Fundamental Rights and of the ECHR with regard to an effective legal remedy. In that context, the appellants refer to the fact that the Commission's decisions on fines are at least to some extent akin to criminal law sanctions. Moreover, the Commission's own procedure fails to meet the standards of the ECHR and the Charter of Fundamental Rights. In support of that assertion, the appellants observe that the Commission investigates the relevant facts, prosecutes undertakings and subsequently even decides on the nature and amount of the penalty. Such a procedure would be acceptable only if the Commission's decisions were subject to full review by a court. As maintained in the context of the first part of the third plea in law, however, the General Court confines itself in subsequent examinations of Commission decisions to obvious inconsistencies and does not make its own direct findings of fact.

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