Action brought on 15 September 2010 - Hit Groep BV v European Commission

(Case T-436/10)

Language of the case: Dutch

Parties

Applicant: Hit Groep BV (Haarlem, Netherlands) (represented by: G. van der Wal, G. Oosterhuis and H. Albers, lawyers)

Defendant: European Commission

Form of order sought

Annul the Decision in so far as it is directed against the applicant, in particular Article 1(9)(b), Article 2(9) and Article 4(22), in the alternative, set the fine imposed on the applicant in Article 2(9) at nil or reduce it equitably;

Order the Commission to pay the applicant's costs in these proceedings, including its costs of legal assistance.

Pleas in law and main arguments

The applicant's application is directed at the Commission's Decision of 30 June 2010 in Case COMP/38.344 - Prestressing steel.

In support of its application the applicant puts forward five pleas in law:

First, the Commission found in Article 1 of the Decision, wrongly and contrary to law, or without stating sufficient reasons, that the applicant infringed Article 101 TFEU and Article 53 EEA from 1 January 1998 to 17 January 2002.

According to the applicant, the Commission has given insufficient reasons as to why it infringed Article 101 TFEU and has been drawn into this case by the Commission, otherwise than as a shareholder with "decisive influence" in the period from 1 January 1998 to 17 January 2002.

Second, the Commission, wrongly and contrary to law, imposed a fine on the applicant. According to the applicant, the fine imposed by the Decision of 30 June 2010 on an undertaking such as the applicant which has not been economically active since 1 November 2004 is contrary to the aims of Article 101 TFEU, Community policy on fines, and the principle of proportionality.

Third, the Commission, wrongly and contrary to law, found in Article 1(9) of the contested decision that the applicant had infringed Article 101 TFEU and Article 53 EEA and on that basis imposed a fine on it of EUR 6 934 000 because the applicant was, in the Commission's opinion, jointly liable with Nedri Spanstaal BV for the period from 1 January 1998 to 17 January 2002.

The applicant submits that from 1 January 1998 to 17 January 2002 it was a private equity company which had no "decisive influence" over Nedri Spanstaal and for that reason cannot be held responsible for the infringement by Nedri Spanstaal of competition law.

Fourth, and in the alternative, the applicant submits that the Commission, wrongly and contrary to law, imposed a fine on the applicant of EUR 6 934 000 and should have imposed no fine or a considerably lower fine on it.

According to the applicant, the Commission should not have taken its 2003 turnover into account as the criterion for the purposes of fixing the 10% ceiling for its fine; in any event, if the main rule in Article 23(2) of Regulation (EC) No 1/2003 was not applied, the Commission should have considered its consequences in the specific case in the light of the purpose of that provision. The fine is therefore not proportionate to the size of the undertaking and does not fulfil the requirements of the case-law.

The Commission should also have granted the applicant the reduction for leniency which it granted Nedri Spanstaal.

The Commission wrongly calculated the applicant's fine separately and should have limited that fine to a fraction of the fine imposed on Nedri Spanstaal. The Decision in regard to the applicant is based on the applicant's shareholding in Nedri Spanstaal during a 48/224th part of the total period of Nedri Spanstaal's infringement; the fine does not satisfy the principal of proportionality.

By failing to take account, after applying the 10% ceiling, of the relatively limited period for which the applicant is held liable for Nedri Spanstaal's infringement, the relatively limited quality of the applicant's liability and its limited turnover, the Commission infringed the principle of proportionality.

By failing to take account, after applying the 10% ceiling, of the relatively limited period for which the applicant is held liable for the infringement in comparison with Nedri Spanstaal, the Commission infringed the principle of equal treatment. It follows from the case-law that the amount of the fine is also determined by the length of the infringement during which the fined undertaking is jointly responsible. The fact that the applicant's fine is higher than Nedri Spanstaal's fine is incompatible with this.

Fifthly, and in the alternative, the applicant submits that the Commission infringed its obligation to adopt a decision within a reasonable period, contrary to Article 6(1) of the EHRC and Article 41 of the Charter of Fundamental Rights of the EU. When setting the fine, the Commission wrongly failed to take account of the failure to act within a reasonable period. The duration of the proceedings in question is 94 months and thus unreasonably long.

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