Action brought on 3 September 2010 - Bolloré v Commission
(Case T-372/10)
Language of the case: French
Parties
Applicant: Bolloré (Ergué-Gabéric, France) (represented by: P. Gassenbach, C. Lemaire and O. de Juvigny, lawyers)
Defendant: European Commission
Form of order sought
Annul Articles 1 and 2 of Commission Decision C(2010) 4160 final of 23 June 2010 relating to a proceeding under Article 101 TFUE and Article 53 of the EEA Agreement (Case COMP/36.212 - Carbonless paper);
In the alternative, reduce very substantially the amount of the fine imposed on Bolloré by Article 2 of the said decision;
Order the European Commission to pay all the costs.
Pleas in law and main arguments
In the present action, the applicant seeks principally annulment of Commission Decision C(2010) 4160 final of 23 June 2010 relating to a proceeding under Article 101 TFUE and Article 53 of the EEA Agreement (Case COMP/36.212 - Carbonless paper) adopted by the Commission following the judgment of the Court of Justice in Case C-327/07 P Bolloré v Commission in which the Court held that Bolloré's rights of defence had not been observed inasmuch as Bolloré had been sanctioned, not merely as the parent company of Copigraph, but also on account of its direct and personal involvement in the infringement, even though the statement of objections referred only to its liability as the parent company of Copigraph.
In support of its action, the applicant puts forward six pleas in law alleging:
- an infringement of Articles 6 and 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR') and Articles 41, 47 and 49 of the Charter of fundamental rights of the European Union ('the Charter') inasmuch as the sanction imposed on Bolloré was adopted in breach of the principles of the legality of infringements and penalties, legal certainty, the personal nature of penalties and the right to a fair trial in so far as:
- the fact that Bolloré was sanctioned as a parent company constitutes a breach of the principles of the legality of infringements and penalties and of legal certainty, referred to in Articles 6 and 7 of the ECHR and Articles 47 and 49 of the Charter, and of the principle of the personal nature of penalties;
- Bolloré's hearing, in which no Member of the Commission took part, constitutes an infringement of the right to a fair trial laid down in Article 6 of the ECHR and Articles 41 and 47 of the Charter, since Bolloré was thus not heard by those who were to judge it.
- the conditions under which the initial decision was 're-adopted' infringe, from several points of view, the impartiality which is part of the right to a fair trial laid down in Article 6 of the ECHR and Articles 41 and 47 of the Charter;
- an infringement of Article 101 TFEU and Article 25 of Regulation No 1/2003
1 in as much as the Commission sanctioned Bolloré for infringements which are now time barred;
- an infringement of the principle of equal treatment inasmuch as Bolloré was sanctioned in its capacity as parent company of Copigraph at the time of the facts;
- an infringement of Article 101 TFEU, Article 6 of the ECHR and Articles 41 and 47 of the Charter by the communication of a second statement of objections within an unreasonable period of time, thereby definitively preventing Bolloré from defending itself against the complaints relating, on the one hand, to its liability as the parent company of Copigraph and, on the other, to its personal involvement in the infringement;
- in the alternative, an infringement of the 1998 Guidelines on the setting of fines
2, the principle of the individual nature of penalties, of proportionality in fixing the amount of the fine and of the obligation to state reasons, and
- in the alternative, an infringement of the 1996 notice on the non-imposition or reduction of fines
3 and of the principles of proportionality and equal treatment.