Appeal brought on 27 November 2013 by Productos Asfálticos (PROAS), S.A. against the order of the General Court (Eighth Chamber) delivered on 16 September 2013 in Case T-495/07 PROAS v Commission
(Case C-616/13 P)
Language of the case: Spanish
Parties
Appellant: Productos Asfálticos (PROAS), S.A. (represented by: C. Fernández Vicién, abogada)
Other party to the proceedings: European Commission
Form of order sought
The appellant claims that the Court should:
declare the appeal admissible and well founded;
set aside the judgment of the General Court of 16 September 2013;
grant the application made at first instance and annul the Commission’s decision of 3 October 2007 in Case COMP/38.710 – Betún España or, alternatively, reduce the amount of the fine imposed on the applicant;
or, alternatively, refer the case back to the General Court for the matter to be determined anew;
order, at all events, the Commission to pay all the costs relating to the present proceedings, and those incurred as a result of the proceedings before the General Court.
Pleas in law and main arguments
Breach by the General Court of the principle of effective protection by failing to examine, in the exercise of its unlimited jurisdiction, the pleas in law relied on by Productos Asfálticos, S.A. in relation to the determination of the amount of the penalty. That breach consists of:
distortion by the General Court of the pleas in law relied on by PROAS in its action for annulment before the General Court;
lack of an independent analysis by the General Court as to the proportionality of and the statement of reasons for the penalty imposed in relation to the effects of the infringement;
failure of the General Court to carry out an analysis of observance by the Commission of the principle of equality of treatment and of legal certainty in relation to its earlier decisions;
failure to carry out an effective analysis in relation to PROAS’s specific weight in the infringement and incorrect refusal to grant the procedural measures requested.
Breach by the General Court of the principles of legal certainty and equal treatment, and of PROAS’s right to a fair hearing, as a result of the incorrect interpretation of the guidelines for the calculation of the fines imposed under Article 15(2) of Regulation No 17. 1
The General Court has authorised the Commission to infringe its own guidelines by allowing it not to take into account, in determining the fine, the minor effect of the breach.
The General Court has infringed PROAS’s right to a fair hearing in not allowing it to rebut the rebuttable presumption that cartels always have effects.
Breach by the General Court of the principle of sound administration and of the duty to act within a reasonable time.
Breach by the General Court of the principles relating to costs.
________________________ 1 Council Regulation (EEC) No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).