Appeal brought on 20 September 2018 by Furukawa Electric Co. Ltd against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-444/14: Furukawa Electric v Commission
(Case C-589/18 P)
Language of the case: English
Parties
Appellant: Furukawa Electric Co. Ltd (represented by: C. Pouncey, A. Luke, Solicitors)
Other parties to the proceedings: European Commission, Viscas Corp.
Form of order sought
The appellant claims that the Court should:
set aside the judgment in Case T-444/2014, Furukawa Electric v Commission, to the extent that it rejected: (i) the first part of Furukawa's fifth plea in law; and (ii) the third part of Furukawa's third plea in law; in relation to the calculation of the amount of the fine imposed on Furukawa and the order for Furukawa to pay the costs;
annul Article 2(n) of the Commission Decision C(2014) 2139 final1 insofar as it sets the amount of the fine imposed on Furukawa at EUR 8 858 000;
set the fine imposed on Furukawa in Article 2(n) of the Commission's decision at EUR 4 844 000;
in the event the Court sets aside the judgment in Case T-422/2014, Viscas v Commission, and reduces the fine imposed on Viscas under Article 2(p) of the Commission Decision C(2014) 2139 final, grant Furukawa an equivalent reduction in the amount of the fine for which it is jointly and severally liable in accordance with paragraph 291 of the General Court's judgment in Case T-444/2014; and
order the Commission to pay Furukawa's costs in these proceedings and in the proceedings before the General Court.
Pleas in law and main arguments
The appellant submits that the General Court's judgment should be set aside on the following grounds:
First, the General Court erred in law in its interpretation of Point 18 of the Fining Guidelines2 in considering that the European Commission was entitled to take into account, when determining the relevant value of sales for the appellant for the period 18 February 1999 – 30 September 2001, sales made by Fujikura Ltd. given that no structural, organisational, or legal links existed between that entity and the appellant during this period. The appellant and Fujikura Ltd. did not form a single undertaking during this time period and it was therefore not legally correct to take such sales into account when calculating the value of sales for the appellant. The inclusion of such sales breached the principle of personal responsibility and led to an increase in the amount of the fine imposed on the appellant of over EUR 200 000.
Second, the General Court erred in law by misapplying the rules on equal treatment in considering that the Commission was entitled to apply Point 18 of the Fining Guidelines to all addressees of the Commission's decision in ‘Power Cables’ despite the fundamentally different situations of the parties. The European producers participated in a worldwide market sharing cartel as well as a European cartel, whereas the Japanese and Korean producers (including the appellant) participated in worldwide market sharing cartel only. In light of the breach of equal treatment that arises from the blanket application of Point 18 of the Fining Guidelines to all addressees which rewarded the European producers with a reduction to their respective values of sales (and hence their fines) of 44%, and further to the Court's judgment in Case 580/12 P, Guardian Industries and Guardian Europe v Commission, the appellant requests that the Court rectify the violation by granting a reduction in the fine imposed on the appellant of 44%.
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1 Commission Decision of 2 April 2014 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) (notified under document C(2014) 2139 final) (OJ 2014, C 319, p. 10)
2 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006, C 210, p. 2)