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Action brought on 7 October 2009 - Almamet v Commission

(Case T-410/09)

Language of the case: English

Parties

Applicants: Almamet GmbH Handel mit Spänen und Pulvern aus Metall (Ainring, Germany) (represented by: S. Hautbourg and C. Renner, lawyers)

Defendant: Commission of the European Communities

Form of order sought

to declare the Commission Decision of 22 July 2009 (Case COMP/39.396) void, in so far as it concerns the applicant;

in the alternative, reduce the fine imposed by Article 2 of the decision,

to order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's decision C(2009) 5791 final of 22 July 2009 (Case COMP/39.396 - Calcium carbide and magnesium based reagents for the steel and gas industries) relating to a proceeding under Article 81 EC and Article 53 EEA by which the Commission found that a number of suppliers of calcium carbide and magnesium granulates engaged in market sharing, quotas and customer allocation, price fixing and exchanges of sensitive commercial information on a substantial part of the EEA market thereby infringing the aforementioned Treaty provisions ("the contested decision") in so far as it concerns the applicant and, in the alternative, the reduction of the fine imposed on it by Article 2 of the contested decision.

The applicant presents three pleas in law in support of its request for annulment:

With its first plea, the applicant submits that the Commission violated its rights of defence in using documents against it which were seized outside the scope of the Commission's inspection decision.

With its second plea, the applicant claims that the Commission has failed to establish to the requisite legal standard of proof the existence of the infringement found in Article 1 of the contested decision as far as magnesium in concerned. The applicant considers that even if the documents which were illegally seized were admitted to the Commission's file, they are fundamentally lacking precision and coherence. According to the applicant's submissions, the remainder of the evidence consists of an oral leniency statement which not only lacks precision but also is a misrepresentation of certain facts and is contested by other parties. On this basis, the applicant considers that the burden of proof with regard to the alleged infringement continues to lie with the Commission.

With its third plea, the applicant contends that the Commission has committed a manifest error of assessment regarding the single and continuous nature of the infringement. Notably, there is no true substitutability between calcium carbide and magnesium granulates. Moreover, the applicant claims that there was no common overall plan for the two products proved by the existence of distinct meetings for each product.

In the alternative, the applicant presents four further pleas in support of its request for a reduction of the fine imposed by Article 2 of the contested decision.

With its fourth plea, the applicant claims that the Commission infringed points 23 and 26 of the Leniency Notice¹ in refusing the applicant a reduction under the said notice. The applicant considers that the elements contained in its leniency application represent information of significant added value. In particular, the applicant considers that the Commission was not entitled to refuse a reduction of the fine on the sole basis that its application did not contain any information on the alleged magnesium infringement since this infringement is not part of the procedure.

With its fifth plea, the applicant submits that the Commission infringed Article 81 EC and Article 23(2) of Regulation (EC) No 1/2003² as well as point 32 of the Fining Guidelines³ by setting the final amount of the fine at a level exceeding 10% of its last audited turnover. The applicant contends that the Commission based itself on the applicant's pro forma turnover figures of 2008 for the purpose of calculating the amount of the fine instead of its last audited turnover for 2007. In addition, the applicant considers that the commission should have applied the 20% reduction based on point 37 of the Fining Guidelines after the calculation of 10% legal maximum.

With its sixth plea, the applicant submits that the Commission infringed the principle of proportionality in fixing an excessive amount of the fine as far as it is concerned. The applicant claims that imposing a fine of an amount that results in a negative book value or reduces a company's book value to zero is manifestly disproportionate. In addition, the fine imposed exceeds the financial capacity of a dealer like the applicant which is operating with very high-value products and very low profit margins. Finally, the applicant considers that the reduction of 20% applied by the Commission does not sufficiently take into account the applicant's specific situation explicitly acknowledged by the Commission, still leaving the fine at a disproportionate level.

With its seventh plea, the applicant submits that the Commission committed a manifest error of appraisal in considering that is did not meet the conditions of point 35 of the Fining Guidelines. The applicant considers that the Commission fixed the amount of the fine at a level which will irretrievably jeopardise its economic viability and cause all its assets to lose their value. In addition, the applicant contends that the commission committed an error of appraisal in considering that there was no specific social and economic context to be taken into account of in the applicant's case.

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¹ - Commission Notice on Immunity from fines and reduction of fines in cartel cases (Text with EEA relevance) (OJ 2006 C 298, p. 17)

² - 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)

³ - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2)