Action brought on 10 June 2011 - Schwenk Zement v Commission

(Case T-306/11)

Language of the case: German

Parties

Applicant: Schwenk Zement KG (Ulm, Germany) (represented by: M. Raible, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

annul Commission Decision C(2011) 2367 final of 30 March 2011 (Case COMP/39520 - Cement and related products);

in accordance with Article 87(2) of the Rules of Procedure of the General Court, order the Commission to pay the applicant's costs.

Pleas in law and main arguments

In support of its action, the applicant relies on five pleas in law.

First plea in law: the form of the decision is disproportionate

The contested decision infringes the principle of proportionality since it constitutes the first measure of investigation adopted in relation to the applicant and the applicant was willing to provide information.

-    It is true that Council Regulation (EC) No 1/2003¹ does not provide for a hierarchical relationship between simple requests for information and a decision requiring information. This does not change the fact, however, that the principle of proportionality is to be observed when opting for a measure of investigation.

-    Compared with a decision requiring information pursuant to Article 18(3) of Regulation No 1/2003 a request for information pursuant to Article 18(2) of that regulation is the more lenient option and also constitutes an effective method in relation to undertakings which are willing to provide information.

Second plea in law: infringement of Article 18(3) of Regulation No 1/2003

The contested decision does not meet the requirements of the legal basis in Article 18(3) of Regulation No 1/2003

The Commission does not set out any concrete allegations and the information requested largely does not coincide with what it claims to be its allegation.

Therefore, the request for information is not necessary for the Commission's investigation. The information requested cannot constitute evidence of an infringement of cartel law.

Third plea in law: the time limit imposed was disproportionate

The two-week time limit within which to answer Question 11 was not sufficient for the applicant.

The Commission reduced the time limit for answering question 11 from two months in its draft decision to two weeks in the contested decision without reasoning its decision to do so.

It was impossible for the applicant to provide an answer within the two-week time limit. However, the Commission categorically rejected its request for an extension of that time limit.

As a result of the breadth of the information requested, the difficulty in compiling the information and the individual situation of the applicant, a longer time limit was strictly necessary for it.

4.    Fourth plea in law: insufficient grounds are given in the contested decision

The grounds for the contested decision are not stated in a proper manner.

-    The contested decision does not set out the allegations made against the applicant. It also fails to state the connection between the information requested and the allegations made.

-     Insufficient grounds are also given for the determination of the time limit in general and for the shortening of the time limit for answering question 11 from two months in its draft decision to two weeks in the contested decision.

5.    Fifth plea in law: the applicant's rights of defence have been infringed

As a result of the time pressure exerted by the Commission, the applicant's rights of defence were infringed, in particular its right not to incriminate itself.

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¹ - Council Regulation (EC) 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).