# C_2007082EN.01003902.xml

| 14.4.2007 | EN | Official Journal of the European Union | C 82/39 |
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14.4.2007

EN

Official Journal of the European Union

C 82/39

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Action brought on 6 February 2007 — ThyssenKrupp Stainless v Commission

(Case T-24/07)

(2007/C 82/88)

Language of the case: German

Parties

Applicant: ThyssenKrupp Stainless AG (Duisburg, Germany) (represented by: M. Klusmann and S. Thomas)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the contested decision; |
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annul the contested decision;

| — | in the alternative, annul Article 2 of the operative part of that decision; |
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in the alternative, annul Article 2 of the operative part of that decision;

| — | in the further alternative, reduce the amount of the fine imposed on the applicant in the contested decision; |
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in the further alternative, reduce the amount of the fine imposed on the applicant in the contested decision;

| — | order the defendant to pay the costs of the proceedings. |
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order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2006) 6765 final of 20 December 2006 in Case COMP/39.234 — Alloy surcharge re-adoption. In the contested decision, which concerns the reopening of the proceeding in Case IV/35.814 — Alloy surcharge, a fine was imposed on the applicant for infringement of Article 65(1) CS by Thyssen Stahl GmbH (previously Thyssen Stahl AG) in that it agreed an alteration to the reference values used to calculate the alloy surcharge and applied that alteration.

The applicant raises ten pleas in law in support of its action:

| — | infringement of the principle of nulla poena sine lege, since, in the absence of transitional provisions, the Commission had no power to apply retroactively the CS Treaty which expired in 2002; |
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infringement of the principle of nulla poena sine lege, since, in the absence of transitional provisions, the Commission had no power to apply retroactively the CS Treaty which expired in 2002;

nulla poena sine lege

| — | unlawful application of Regulation (EC) No 1/2003 (1), since it grants entitlement only to apply Articles 81 EC and 82 EC, but not the CS Treaty; |
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unlawful application of Regulation (EC) No 1/2003 (1), since it grants entitlement only to apply Articles 81 EC and 82 EC, but not the CS Treaty;

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| — | infringement of the principal of res iudicata, since the Court of Justice has already given final judgment in the case to the effect that on the merits the applicant is not liable for the infringement of Thyssen Stahl AG which was alleged against it and attributed to it once more in the contested decision; |
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infringement of the principal of res iudicata, since the Court of Justice has already given final judgment in the case to the effect that on the merits the applicant is not liable for the infringement of Thyssen Stahl AG which was alleged against it and attributed to it once more in the contested decision;

res iudicata

| — | lack of responsibility of the applicant by way of a private declaration of assumption of liability, since such a declaration is declaratory at most; |
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lack of responsibility of the applicant by way of a private declaration of assumption of liability, since such a declaration is declaratory at most;

| — | infringement of the principle of legal certainty since the basis for the penalty and the basis for the attribution of liability are insufficiently certain; |
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infringement of the principle of legal certainty since the basis for the penalty and the basis for the attribution of liability are insufficiently certain;

| — | infringement of the principle of ne bis in idem, because a fine has been imposed on the applicant already in the first proceedings on the same facts, a matter on which the Court has given final judgment; |
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infringement of the principle of ne bis in idem, because a fine has been imposed on the applicant already in the first proceedings on the same facts, a matter on which the Court has given final judgment;

ne bis in idem

| — | the infringement is time barred; |
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the infringement is time barred;

| — | infringement of the right of access to the file; |
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infringement of the right of access to the file;

| — | infringement of the right to be heard due to incomplete objections; and |
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infringement of the right to be heard due to incomplete objections; and

| — | miscalculation of the fine in the light of the 1996 Leniency Notice (2). |
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miscalculation of the fine in the light of the 1996 Leniency Notice (2).

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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).

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(2)  Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4).

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