Action brought on 6 October 2009 - ECKA Granulate and non ferrum Metallpulver v Commission

(Case T-400/09)

Language of the case: German

Parties

Applicants: ECKA Granulate GmbH & Co. KG (Fürth, Germany) and non ferrum Metallpulver GmbH & Co. KG (St Georgen bei Salzburg, Austria) (represented by: H. Janssen and M. Franz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the contested decision in so far as it concerns the applicants;

in the alternative, reduce appropriately the fine imposed on the applicants by the contested decision;

order the defendant to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 - Calcium carbide and magnesium based reagents for the steel and gas industry. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.

In support of their action, the applicants submit the following pleas in law:

Infringement of the principle of legal certainty by Article 23 of Regulation (EC) No 1/2003 ¹ since the Commission has an almost unfettered discretion in relation to setting the fine;

unlawful setting of the fine since the Guidelines on setting fines ² grant the Commission an almost unfettered discretion in relation to setting the amount of the fine;

disproportionality of the amount of the fine since the defendant failed to take account of the applicants' effective cooperation;

disproportionality of the amount of the fine since the defendant failed to take account of the fact that the applicants have no experience of infringements of the law relating to cartels;

disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the applicants' introduction of 'compliance measures' and the fact that, on personnel grounds also, there is no risk of repetition;

disproportionality of the amount of the fine since the defendant failed to take into account as a mitigating circumstance the fact that the applicants did not stint in the supply of magnesium;

disproportionality of the amount of the fine since no account was taken of the applicants' lack of resources.

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¹ - Council Regulation 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).

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