Action brought on 14 June 2006 - Tomra Systems and Others v Commission

(Case T-155/06)

Language of the case: English

Parties

Applicants: Tomra Systems ASA (Asker, Norway), Tomra Europe AS (Asker, Norway), Tomra Systems BV (Apeldoorn, Netherlands), Tomra Systems GmbH (Hilden, Germany), Tomra Butikksystemer AS (Asker, Norway), Tomra Systems AB (Sollentuna, Sweden), Tomra Leergutsysteme GmbH (Vienna, Austria) (represented by: A. Ryan, Solicitor, J. Midthjell, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Annul Commission Decision COMP/E-1/38.113 - Prokent/Tomra of 29 March 2006 in its entirety; and

order the defendant to pay the costs of the proceedings, including the costs incurred by the applicants to post a bank guarantee for its obligation to pay the fine.

In the alternative, annul or reduce substantially the amount of the fine imposed by Article 2 of the abovementioned decision; and

order the defendant to pay the costs of the proceedings, including the costs incurred by the applicants to post a bank guarantee for its obligation to pay the fine.

Pleas in law and main arguments

The applicants are part of the Tomra group, which is active in the area of collecting used beverage containers mainly through the supply of reverse vending machines (RVMs) and related products and services.

In 2001 the Commission received a complaint denouncing an abuse of a dominant position on the part of the applicants preventing the complainant's access to the market.

By the contested decision, the Commission concluded that the applicants infringed Article 82 EC and Article 54 of the EEA Agreement in the period 1998-2002 by implementing an exclusionary strategy in the national reverse vending machines markets in Austria, Germany, the Netherlands, Norway and Sweden, involving exclusivity agreements, individualised quantity commitments and individualised retroactive rebate schemes. The Commission imposed on the applicants a fine of 24 million EUR.

In support of their application, the applicants submit that the Commission:

used manifestly incorrect and unreliable evidence to prove that the group designed a strategy to foreclose competition and implemented that strategy by 49 agreements with its customers between 1998 and 2002;

committed manifest errors on its assessment on whether the agreements were capable of foreclosing competition and failure to state reasons, and on whether these agreement actually foreclosed competition;

committed a manifest error in law by holding exclusivity agreements, individualised quantity commitments and individualised retroactive rebates unlawful per se under Article 82 EC;

committed a manifest error in concluding that non-binding quantity commitments can infringe Article 82 EC; and

breached the principles of proportionality and non-discrimination when it imposed the 24 million EUR fine on the applicants.

____________