Notice for the OJ

 

Action brought on 13 December 2001 by Jungbunzlauer AG against the Commission of the European Communities

    (Case T-312/01)

    Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 13 December 2001 by Jungbunzlauer AG, of Basle, represented by Rainer Bechtold, Matthias Karl and Ulrich Soltész, lawyers.

The applicant claims that the Court should:

(annul the Commission's decision of 2 October 2001 (Case COM/E-1/36.756 ( Sodium gluconate);

(alternatively, reduce the fine imposed in Article 3 of the decision;

(order the Commission to pay the applicant's costs.

Pleas in law and main arguments:

By the contested decision, the Commission found that the applicant and five other undertakings had participated in a continuous and/or concerted practice in the sodium gluconate sector and had thereby infringed Article 81(1) EC. Fines were imposed on those undertakings.

The applicant is contesting that decision and asserts that it was directed to the wrong addressee, inasmuch as it was only Jungbunzlauer Ladenburg GmbH, an associate company of the applicant, which had participated in the acts contrary to cartel law described in the decision.

The applicant claims that the Commission wrongly assumed that the infringement did not cease until 1995. Moreover, the Commission has not conclusively shown that the applicant, or its associated company, had played the role of "ringleader" ( on which ground the basic amount of the fine was wrongly increased by 50%.

With regard to the fine imposed, the applicant asserts, inter alia, that the Commission, when fixing the amount of the fine, failed to take account of the size of the undertakings concerned, and likewise failed to pay sufficient regard to the economic significance of the infringement. The Commission thereby violated the principle of proportionality, its own guidelines and its own practice. Furthermore, it committed an error of assessment by refusing to take into account the fact that fines had already been imposed in the USA and Canada in respect of the same facts.

Finally, the applicant claims that its right to be heard in accordance with the law has been violated, since the Commission did not give it access to the entire investigation file. In addition, the protracted length of the procedure had a twofold effect on the content of the decision, inasmuch as the latest turnover figures were taken as the applicable basis and because the decision was not issued until after there had been a substantial tightening of the Commission's practice in the imposition of fines, which significantly prejudiced the applicant's position.

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