Appeal brought on 16 December 2021 by Nec Corp. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 29 September 2021 in Case T-341/18, Nec v Commission

(Case C-786/21 P)

Language of the case: English

Parties

Appellant: Nec Corp. (represented by: R. Bachour, Solicitor, A. Pliego Selie, W. Brouwer, R. Warning, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

set aside the judgment under appeal;

render final judgment in this appeal proceeding and annul the contested decision and/or reduce the fine as requested in this appeal, or, in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and

order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

By the first ground of appeal, which is divided into three parts, the Appellant claims that the General Court committed an error of law and failed to provide sufficient or adequate reasoning in the review of whether the fine of the Appellant could be increased for recidivism.

First, the General Court erred in holding that the contested decision could impose a separate fine on the Appellant for recidivism despite the fact that its liability constitutes and is qualified as a derivative liability only.

Second, the General Court erred in upholding the increase of the fine for recidivism for a period before 20 May 2010, that is, before the Appellant was held and informed to have committed an infringement. This is neither correct in law nor proportionate, especially given the limited time between the Commission’s adoption of the Commission’s DRAMs Decision¹ and the end of the infringement of Tokin Corporation and the fact that the Appellant cannot, therefore, objectively be held to have accepted or in any way endorsed the infringement by Tokin Corporation.

Third, in any event, the judgment under appeal erred in law through misapplication of the principle of proportionality when reviewing the amount of the fine and establishing the period for which it is applied.

By the second ground of appeal, the Appellant claims that the General Court in the judgment under appeal distorted the contested decision and accepted a manifest inconsistency in the contested decision as regards the participation of the Appellant in the identified infringement by replacing the inconsistency concerning the qualification of Appellant’s liability with its own understanding of the facts and the Commission’s reasoning in the contested decision.

By the third ground of appeal, the Appellant claims that the judgment under appeal erred in law through misapplication of the principles of proportionality, and breached the duty to provide sufficient or adequate reasoning when reviewing the amount of the fine under the exercise of its unlimited jurisdiction.

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¹ Commission Decision of 19 May 2010 relating to a proceeding under Article 101 of TFEU and Article 53 of the EEA Agreement (Case COMP/38.511 — DRAMs).