Action brought on 8 September 2010 - Dornbracht v Commission

(Case T-386/10)

Language of the case: German

Parties

Applicant: Aloys F. Dornbracht GmbH & Co KG (Iserlohn, Germany) (represented by: H. Janssen, T. Kapp and M. Franz, lawyers)

Defendant: European Commission

Form of order sought

Annul the contested decision, in so far as it concerns the applicant;

In the alternative, reduce the fine imposed on the applicant in the contested decision;

Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 - Bathroom fittings and fixtures. The decision imposed fines on the applicant and other undertakings on account of the infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant took part in a long-lasting agreement or concerted practices in the bathroom fittings and fixtures sector in Germany and Austria.

In support of its claim, the applicant relies on eight pleas in law.

First, the applicant claims that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, ¹ because the defendant did not take into account a number of mitigating circumstances in the applicant's favour.

Second, the applicant claims that there has been an infringement of Article 23(3) of Regulation No 1/2003, because the defendant, by interpreting the second sentence of Article 23(2) of that regulation as a cap, prevented itself from assessing the gravity of the infringement of which the applicant was accused.

Third, the applicant claims that the principle of equal treatment has not been observed because the defendant, by fixing general amounts, failed to take into account the applicant's individual contribution to the act.

Fourth, the applicant claims that when setting the level of the fine, the defendant failed to assess the infringement in proportion to infringements in other cases decided by it, and therefore failed to observe the principle of equal treatment.

Fifth, the applicant complains that the level of the fine is disproportionate because the defendant failed to take into account the applicant's limited capacity to participate.

Sixth, the applicant complains that, in so far as the defendant calculated the fines on the basis of its 2006 Guidelines on fines, ² the contested decision failed to comply with the prohibition on retroactive effect.

Seventh, the applicant claims that Article 23(3) of Regulation No 1/2003 infringes the principle of legal certainty.

Finally, the applicant claims that the fixing of the fine was unlawful because the fine was calculated on the basis of guidelines on fines which give the defendant too much discretion.

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¹ - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

² - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).