Action brought on 7 September 2010 - Mamoli Robinetteria v Commission

(Case T-376/10)

Language of the case: Italian

Parties

Applicant: Mamoli Robinetteria SpA (Milan, Italy) (represented by: F. Capelli, lawyer, M. Valcada, lawyer)

Defendant: European Commission

Form of order sought

Annul Article 1 of European Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 53 of the EEA Agreement, notified (Case COMP/39092 - Bathroom Fittings and Fixtures), in so far as it finds that Mamoli Robinetteria SpA had infringed Article 10 TFEU and, consequently, annul Article 2 of that decision in so far as it imposes on Mamoli Robinetteria SpA a fine amounting to 10% of the total turnover for 2009, subsequently reduced to EUR 1 041 531 on account of Mamoli's specific situation;

Annul Article 2 of European Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement, notified (Case COMP/39092 - Bathroom Fittings and Fixtures), recalculating the fine and reducing it to an amount equal to 0.3% of Mamoli Robinetteria's turnover for 2003 or, in any event, to such lesser amount, compared with the penalty imposed, as the Court may deem appropriate.

Pleas in law and main arguments

The decision contested in these proceedings is the same as that contested in Case T-364/10 Duravit and Others v Commission and Case T-368/10 Rubinetteria Cisal v Commission.

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

Infringement of the rights of the defence, of the principle of audi alteram partem and of the principle of equal treatment, in so far as the other parties to the proceedings were able to put forward arguments in their defence in relation to circumstances not disclosed to Mamoli. It is also argued that the statement of objections was also based on documents treated as confidential and not accessible to the parties for consultation.

Breach of the principle of legality and infringement of Articles 101 to 105 TFEU, taken together, and Article 23 of Council Regulation No 1/2003. ¹ In that connection, the applicant submits that, in the absence of an act of the European legislature, the Commission does not have any power to grant partial or total immunity to undertakings or, on the basis of such a statement of objections, to initiate competition proceedings resulting in the imposition of heavy penalties.

Infringement of Article 101 TFEU and Article 2 of Regulation EC No 1/2003.

In that connection, the applicant submits that the Commission made substantial errors during the investigation, disregarding the specific nature of the Italian market (for example, structure, characteristics, roll of wholesalers) and conflating the situation of the Italian market with that of the German market. That error undermined the Commission's conclusions as to the existence of a price-fixing cartel on the Italian market. In addition, as a result of the errors alleged, the Commission did not discharge the burden of proof incumbent on it.

As regards the amount of the fine, the applicant submits that the Commission did not correctly evaluate the applicant's actual conduct or the impact of that conduct in the context of the contested infringement, since it failed to take due account of the critical economic situation in which the applicant found itself.

The applicant submits that, although the Commission understood that Mamoli was in fact in a critical economic situation undermining the company's ability to pay, it adopted a decision unsuitable for attaining the objective sought.

____________

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).