Action brought on 8 September 2010 - Fapricela - Indústria de Trefilaria v Commission.

(Case T-398/10)

Language of the case: Portuguese

Parties

Applicant: Fapricela - Indústria de Trefilaria, SA (Ançã, Portugal) (represented by: M. Gorjão-Henriques and S. Roux, lawyers)

Defendant: European Commission

Form of order sought

Annul Article 1 and Article 2 of the Commission Decision of 30 June 2010, relating to a proceeding pursuant to Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38344 - Prestressing steel), with respect to the applicant;

Substantially reduce the fine;

Order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested by the applicant is the same decision contested in the case T-385/10, ArcelorMittal Wire France and Others v Commission.

The applicant submits to the Court:

(i)    Defects of reasoning in the contested decision that affect the rights of defence of Fapricela and have led to a rectification of the decision. The applicant claims that this rectification must be deemed void, as the recognition of material errors by the Commission prejudices the full exercise by Fapricela of its rights of defence and undermines the purpose of the present action, furthermore giving the European Commission the additional option of issuing the new amending decision having regard to the submissions of law and fact of the companies in this action.

(ii)    The European Commission has not established that Fapricela was aware, or should reasonably have been aware, of the existence of non-Iberian cartels and therefore cannot hold Fapricela responsible for the single continuing infringement identified in the contested decision;

Alternatively,

(iii)    The Commission infringed the principle of proportionality and the principle of equal treatment by fixing the fine applied to this company in the way it did and the fine should be reduced accordingly;

(iv)    The Commission incorrectly calculated the duration of the involvement of Fapricela in the infringement and did not take into account a temporary period of distancing; and

(v)    The Commission committed errors of fact and infringed the principle of equal treatment by refusing to recognise Fapricela's inability to pay the fine.

____________