Action brought on 8 June 2012 - Fuhr v Commission

(Case T-248/12)

Language of the case: German

Parties

Applicant: Carl Fuhr GmbH & Co. KG (Heiligenhaus, Germany) (represented by: C. Bahr, S. Dethof and A. Malec, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 - Mountings for windows and window-doors, in so far as it concerns the applicant;

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

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

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

First, the applicant alleges infringement of Article 101 TFEU as a result of the assumption that the applicant participated in a complex single infringement. As a result of the global approach and assessment of the conduct of each of the undertakings concerned and an unlawful uniform approach towards all the participants, the defendant was in breach of its obligation to carry out a legal assessment of the individual participation of the undertakings involved. The defendant attributed the participation of others to the applicant without any legal basis for doing so, and thereby breached the principle nulla poena sine lege under Article 49(1) of the Charter of Fundamental Rights of the European Union ('the Charter').

Second, the applicant complains of the erroneous assumption that the applicant participated in an EEA-wide infringement. The applicant did not participate in any of the numerous meetings and contacts outside Germany. Furthermore, it was not aware of an EEA-wide infringement, nor, in all the circumstances, should it have recognised this.

Third, the applicant alleges breach of the defendant's obligation properly to state the reasons for its decision, in accordance with the second paragraph of Article 296 TFEU, on account of the global, uniform view taken of the participation of each of the undertakings concerned.

Fourth, the applicant alleges miscalculation of the fine owing to the inclusion of unrelated turnover, and thus infringement of Article 23(3) of Regulation No 1/2003 and of the 2006 Guidelines on fines. Given the lack of participation in an EEA-wide infringement, the defendant was entitled to take into account only the applicant's turnover in Germany. Furthermore, the defendant was not entitled to take into account unrelated turnover involving wholesale customers who, as intended, sold the goods purchased exclusively outside the EEA.

Fifth, the applicant alleges fundamental errors of assessment in the calculation of the fine imposed on it, and thus infringement of Article 23(3) of Regulation No 1/2003 and breach of the principle of the proportionality of the penalty to the offence, laid down in Article 49(3), in conjunction with Article 48(1), of the Charter. The fine imposed on the applicant is excessively high and disproportionate. In calculating the fine the defendant failed, in particular, to assess the individual participation of the applicant in terms of duration, scope and intensity, or to take account of mitigating circumstances in the applicant's favour.

Sixth, the applicant alleges breach of the principle of equal treatment on account of the arbitrary and incomprehensible insufficiently substantial reduction in the applicant's fine. The reduction in the applicant's fine is not commensurate with the extent of the reduction in the fines of all other participants, severely disadvantages the applicant and is in no way objectively justified.

Seventh, the applicant alleges breach of the principle of equal treatment in the calculation of the basic amount of the fine. Without taking any account at all of the gravity of the individual participation, the defendant established the same percentage of the basic amount of the fine in respect of all of the undertakings, and thereby severely disadvantaged the applicant.

Eighth, the applicant complains that the excessive duration of the proceedings and the failure to take that into account in the calculation of the fine constitutes an infringement of Article 41 of the Charter.

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