Action brought on 8 September 2010 - Keramag Keramische Werke a.o. v Commission

(Case T-379/10)

Language of the case: English

Parties

Applicants: Keramag Keramische Werke AG (Ratingen, Germany); Koralle Sanitärprodukte GmbH (Vlotho, Germany); Koninklijke Sphinx BV (Maastricht, Netherlands); Allia SAS (Avon, France); Produits Céramique de Touraine SA (PCT) (Selles sur Cher, France); and Pozzi Ginori SpA (Milan, Italy) (represented by: J. Killick, Barrister, P. Lindfelt, lawyer, I. Reynolds, Solicitor, and K. Struckmann, lawyer)

Defendant: European Commission

Form of order sought

annul the contested decision in whole or in part;

declare that the applicants bear no responsibility for anti-competitive activity in taps and, if necessary, annul the Decision to the extent it may find the applicants so responsible;

further or in the alternative, reduce the level of the fine;

order the Commission to pay the costs;

make any other order as may be appropriate in the circumstances of the case.

Pleas in law and main arguments

The applicants seek the annulment of 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 (Case COMP/39.092) insofar as it holds them liable for participation in a continuing agreement or concerted practice in bathroom fittings and fixtures sector covering the territory of Germany, Austria, Italy, France, Belgium and the Netherlands.

In support of the action, the applicants rely on seven pleas in law.

First, they submit that the Commission failed to assess or investigate the economic context and thereby failed to establish the anti-competitive object of the alleged infringements to the requisite legal standard. The applicants contend that the Commission was not legally entitled to presume (or equally to find) that discussions (i) between non-competitors and (ii) about a non-economic price which no market actor pays had anti-competitive object.

Second, they claim that the Commission would have been wrong to hold the applicants responsible for an infringement to taps given the first plea and the fact that the applicants do not produce taps.

Third, the applicants argue that the Commission failed to establish the existence of the alleged infringement to the requisite legal standard, notably because its analysis of the evidence was erroneous in France, Italy and in relation to Keramag Keramische Werke Aktiengesellschaft in Germany.

Fourth, they submit that the Commission has not established an interest in finding an infringement in the Netherlands that was time-barred.

Fifth, the applicants contend that the Commission failed

to adequately set out the allegations in the Statement of Objections and

to retain and disclose relevant and potentially exculpatory evidence.

These procedural failings harmed, in the applicants' view, their rights of defence.

Sixth, the applicants claim that the investigation in this case was selective and arbitrary in nature given that many companies that are alleged to have participated in the supposedly illegal meetings or discussions were never prosecuted.

Seventh, they submit that the fine was unjustifiably and disproportionately high, in particular due to the absence of implementation or effects on the market. Therefore, the applicants invite the Court to exercise its unlimited jurisdiction under Article 261 TFEU to reduce the fine.

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