Appeal brought on 31 August 2011 by Bavaria NV against the judgment delivered by the General Court (Sixth Chamber, Extended Composition) on 16 June 2011 in Case T-235/07 Bavaria NV v European Commission

(Case C-445/11 P)

Language of the case: Dutch

Parties

Appellant: Bavaria NV (represented by: O.W. Brouwer, P.W. Schepens and N. Al-Ani, advocaten)

Other party to the proceedings: European Commission

Form of order sought

Set aside paragraphs 202 to 212, 252 to 255, 288, 289, 292 to 295, 306, 307 and 335 of the judgment delivered by the General Court on 16 June 2011;

refer the case back to the General Court or annul the decision at issue 1 (in whole or in part); and

order the Commission to pay the costs of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

First, the appellant submits that the General Court erred in its interpretation of European Union law, specifically Article 101(1) TFEU, infringed the principle of legal certainty and was inconsistent in the reasons for its determination of the starting date of the infringement. The meeting on 27 February 1996 does not constitute part of the infringement and cannot possibly be the starting point for a series of meetings having an anti-competitive object. In so far as the General Court considered that the mere fact that the meeting on 27 February 1996 was called a 'Catherijne-meeting' showed that the meeting had an anti-competitive object, this contradicts the decision at issue and the General Court is exceeding the limits of its jurisdiction. The method by which the General Court found that there was a series of meetings with an anti-competitive object cannot be used to determine when the infringement began. Furthermore, the General Court's reasoning was inconsistent when it determined that a single statement from InBev could suffice to demonstrate the existence of an infringement.

Secondly, the appellant submits that the General Court erred in its interpretation and application of the principle of equal treatment (and provided an inadequate statement of reasons) in determining that the decision at issue could not be compared with earlier cases in that area, in particular with the Commission's decision in Case 2003/569 2 - Interbrew and Alken-Maes. Furthermore, there was no objective justification for the difference in treatment of the undertakings concerned in those cases.

Thirdly, the General Court infringed the principle of equal treatment, the principle of the non-retroactivity of penalties and the principles of legality and proportionality by failing to reduce the fine imposed on the appellant on account of (the acceptance of) the application of a fines policy that became stricter in 2005 in a situation in which that application was the consequence of what was acknowledged by the General Court to be the excessive duration of the administrative procedure, due entirely to the Commission's inaction.

Fourthly, the General Court erred in its interpretation and application of the principle of proportionality in that it accepted that the Commission calculated the starting amount of the fine on the basis of the appellant's turnover including excise duties, as a result of which the actual impact of the appellant on competition was overestimated and the starting amount applied in its regard was set too high.

Fifthly, the General Court erred in its interpretation of the rights of the defence and the right to good administration in finding that the appellant did not have to be granted access to InBev's reply to the objections. The appellant had provided sufficient indications that that document contained exculpatory evidence.

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1 - Commission Decision C(2007) 1697 of 18 April 2007 relating to a proceeding under Article 81 [EC] (Case COMP/B-2/37.766 - Dutch beer market)

2 - Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 [EC] (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1).