Action brought on 19 February 2010 - Lucchini v Commission

(Case T-91/10)

Language of the case: Italian

Parties

Applicant: Lucchini SpA (Milan, Italy) (represented by: M. Delfino, J.-P. Gunther and E. Bigi, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission Decision C(2009) 7492 final in Case COMP/37.956 - Reinforcing bars, re-adoption, as amended by Decision C(2009) 9912 final.

In the alternative, annul Article 2 of the decision of 30 September 2009, in so far as the applicant is ordered to pay the sum of EUR 14.35 million jointly and severally with the company S.P. SpA.

In the further alternative, reduce the amount of the fine imposed.

In any event, order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the decision of 30 September 2009, as amended by the decision of 8 December 2009, by which the Commission imposed fines for infringement of Article 65 ECSC, on the basis of Regulation (EC) No 1/2003. ¹

The pleas in law and main arguments are similar to those relied on other actions brought against the decision in question.

In particular, the applicant puts forward the following pleas in support of its action:

The incomplete nature of the decision and breach of essential procedural requirements, in so far as the decision was notified without its annexes and was adopted by the Commission in an incomplete form and was then re-notified still in an incomplete form, without the main text.

The Commission lacks competence to allege infringement under Article 65 of the ECSC Treaty once the treaty has expired and, accordingly, incorrectly chose the substantive legal basis.

Breach of the rights of the defence and infringement and incorrect application of the law, in so far as the Commission failed to re-open the administrative procedure and purported to exercise the power to examine the more favourable legislation applicable in the present case without giving the applicant the opportunity effectively to make known its views on the truth and relevance of the facts and circumstances alleged.

In the alternative, the applicant seeks annulment of the decision on the grounds that there is insufficient evidence and that the substantive law was incorrectly applied, in so far as the Commission imputes the infringement, for the entire period from 6 December 1989 and 27 June 2000, to Lucchini through the single undertaking Lucchini/Siderpotenza. The applicant emphasises Siderpotenza's decision-making and management autonomy and the fact that the Commission was not in a position to provide convincing evidence to show that Lucchini was responsible, in terms of human and physical resources, for the management of Siderpotenza.

In the further alternative, the applicant observes that the Commission incorrectly applied the rules governing the calculation of fines, in particular the 1998 Guidelines.

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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).