Action brought on 30 November 2009 - SP v Commission

(Case T-472/09)

Language of the case: Italian

Parties

Applicant: SP SpA (Brescia, Italy) (represented by: G. Belotti, lawyer)

Defendant(s): European Commission

Form of order sought

Declare the contested decision non-existent and/or null and void.

Pleas in law and main arguments

By decision of 17 September 2002, the Commission concluded a procedure initiated as early as October 2000 entailing a number of unannounced inspections at the premises of a number of Italian steel undertakings and accused them of participating in an illegal cartel for the purpose of Article 65 of the ECSC Treaty, namely between 6 December 1989 and July 2000. That decision was challenged by all the undertakings to which it was addressed, including the applicant.

That action was granted on the basis that the Commission had adopted the contested decision using as a legal basis Article 65 CS, even though the latter was no longer in force at the time when the decision was adopted, the ECSC Treaty having expired five years previously.

By the decision which is the subject of the present proceedings, the Commission has repeated the claims alleging infringement set out in the initial decision, amending the legal basis of the penalty sought but not the legal basis of the alleged infringement, which remains Article 65 ECSC.

The applicant puts forward a number of pleas in support of its action, which include the following:

1. The incomplete nature of the decision and infringement of essential procedural requirements, insofar as the decision was notified without its annexes and was, moreover, adopted by the College of Commissioners in an incomplete form.

2. The Commission lacks competence to allege infringement under Article 65 of the ECSC Treaty once the treaty has expired.

3. Infringement of and misapplication of the law in Article 23 of Regulation EC No 1/2003, ¹ since that provision is intended, first, to impose penalties solely in respect of infringements of the EC Treaty and not the ECSC Treaty and, second, to impose penalties solely in respect of active undertakings which produced a turnover in the preceding business year. It should be pointed out in this connection that the applicant, a company that has gone into liquidation, has demonstrated that it did not achieve any turnover in 2008.

4. Misuse of powers and abuse of procedure in that the Commission continued with the procedure initiated under the aegis of the ECSC rules, following a procedure under the EC Treaty, under which it was not so permitted.

5. Partiality of the administrative procedures and failure to state reasons, in that the Commission omitted arguments that had been included in the file which indicated that the alleged cartel did not exist and/or, in any event, was not effective and overlooked information on the file which demonstrated that the applicant did not participate in some aspects of the cartel.

6. Serious breach of the rights of the defence insofar as the decision was not preceded by a fresh statement of objections.

7. Infringement and misapplication of the law, in that the amount of the basic fine was unduly increased, in particular as regards the increase for duration and the increase for deterrence.

____________

¹ - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition law laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).