Notice for the OJ

 

Action brought on 30 January 2003 by S.P. S.p.A against Commission of the European Communities

    (Case T-27/03)

    (Language of the case: Italian)

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 January 2003 by S.P. S.p.A., represented by Gianluca Belotti and Nicola Pisani, lawyers.

The applicant claims that the Court should:

(declare non-existent and/or null and void or, in any event, annul the contested decision;

(in the alternative, annul or reduce the penalty imposed on S.P.;

(in any event, order the defendant to pay the costs.

Pleas in law and main arguments

Among various grounds of annulment, the applicant alleges lack of competence of the Commission to adopt on 17 December 2002 a decision based on Article 65 of the ECSC Treaty when that treaty expired on 22 July 2002, resulting in the nullity of the decision. According to the applicants, the Commission did not have the power to adopt the abovementioned decision in the absence of an express decision to that effect on the part of the Member States.

In support of its application, the applicant contests the economic approach adopted in relation to the facts by the Commission which, on the one hand, defined as the relevant market the Italian geographic market but which, on the other hand, completely overlooked the fact that the average price of reinforced concrete in Italy has always been, on average, less than that in the other States.

Furthermore, S.P. contests the use of documents by the Commission to substantiate its charges, in particular the memorandum of a partner undertaking which, in the Commission's view, provided useful information to understand the way in which the accused undertaking operated, without such documents having been notified to the applicant during the proceeding. Moreover, although the Commission was in possession of them, it failed to mention that it had made use of such cooperation, preventing the applicant from adopting a position in good time in relation to the charges made against it. In that respect also, the applicant seeks the annulment of the decision on the ground of a serious breach of the rights of defence.

S.P. further alleges error of law, in particular the misapplication of Article 65 ECSC, claiming that the contested objections do not contain sufficient evidence to support the existence of an agreement or concerted practices.

Finally, S.P. further contests the methods adopted by the Commission when determining the fines to be imposed, in particular the multiplier and the increment linked to the allegedly uninterrupted duration of the alleged infringements and to the alleged extreme seriousness, which has not been proven, of the infringements.

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