# C_2011063EN.01001804.xml

| 26.2.2011 | EN | Official Journal of the European Union | C 63/18 |
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26.2.2011

EN

Official Journal of the European Union

C 63/18

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Appeal brought on 22 November 2010 by Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB, Tomra Butikksystemer AS against the judgment of the General Court (Fifth Chamber) delivered on 9 September 2010 in Case T-155/06: Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB, Tomra Butikksystemer AS v European Commission

(Case C-549/10 P)

2011/C 63/36

Language of the case: English

Parties

Parties

Appellants: Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB, Tomra Butikksystemer AS (represented by: O. W. Brouwer, advocaat, A.J. Ryan, Solicitor)

Appellants:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| — | Set aside the judgment of the General Court, as requested in this appeal; |
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Set aside the judgment of the General Court, as requested in this appeal;

| — | Give final judgment and annul the decision or in any event reduce the fine, or, in the alternative, in case the Court of Justice does not itself decide the case, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and |
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Give final judgment and annul the decision or in any event reduce the fine, or, in the alternative, in case the Court of Justice does not itself decide the case, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and

| — | If the costs are not reserved, order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice. |
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If the costs are not reserved, order the European Commission to pay the costs of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

Pleas in law and main arguments

The appeal is directed against the judgment of the General Court of 9 September 2010 in Case T-155/06 Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB, Tomra Butikksystemer AS v. European Commission (the Judgment), dismissing the application brought by the Appellants against the decision of the European Commission declaring that the Appellants’ conduct was capable of foreclosing the reverse vending machine market.

The Appellants submit that the Court of Justice of the European Union should set aside the Judgment, as the General Court committed errors of law and procedure in finding that the Appellants’ conduct was capable of foreclosing the reverse vending machine market. In this regard, the Appellants have forwarded the following pleas:

| (i) | error of law in the review applied by the General Court when assessing the European Commission's finding of an anti-competitive intent to foreclose the market: by merely requiring that the European Commission should not conceal documents, the General Court implicitly denied that it needs to carry out a comprehensive review of the Decision of the European Commission applying Article 82 EC Treaty (now Article 102 TFEU) and did also not fulfil the requirements of a marginal review to establish that the evidence relied on by the European Commission is accurate, reliable, consistent, complete and capable of substantiating the conclusions drawn from it; |
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(i)

error of law in the review applied by the General Court when assessing the European Commission's finding of an anti-competitive intent to foreclose the market: by merely requiring that the European Commission should not conceal documents, the General Court implicitly denied that it needs to carry out a comprehensive review of the Decision of the European Commission applying Article 82 EC Treaty (now Article 102 TFEU) and did also not fulfil the requirements of a marginal review to establish that the evidence relied on by the European Commission is accurate, reliable, consistent, complete and capable of substantiating the conclusions drawn from it;

| (ii) | error of law and failure to provide sufficient and adequate reasoning with regard to the portion of total demand the agreements had to cover to be abusive: the Judgment merely uses undefined and unsubstantiated terms to describe the share of demand foreclosed, whereas it should have required a clear demonstration that foreclosure of a certain level of demand was abusive and provided sufficient and adequate reasoning in that regard: |
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(ii)

error of law and failure to provide sufficient and adequate reasoning with regard to the portion of total demand the agreements had to cover to be abusive: the Judgment merely uses undefined and unsubstantiated terms to describe the share of demand foreclosed, whereas it should have required a clear demonstration that foreclosure of a certain level of demand was abusive and provided sufficient and adequate reasoning in that regard:

| (iii) | procedural error and error of law in the examination of retroactive rebates: the General Court misread and consequently failed to correctly take into consideration the Appellants’ arguments on retroactive rebates. The General Court furthermore erred in law by not requiring the European Commission to establish that the retroactive rebates used by the Appellants led to pricing below cost; |
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(iii)

procedural error and error of law in the examination of retroactive rebates: the General Court misread and consequently failed to correctly take into consideration the Appellants’ arguments on retroactive rebates. The General Court furthermore erred in law by not requiring the European Commission to establish that the retroactive rebates used by the Appellants led to pricing below cost;

| (iv) | error of law and failure to provide adequate reasoning when determining whether agreements in which the Appellants are named as preferred, main or primary supplier can be qualified as exclusive, by failing to consider and establish whether all the agreements at issue contained incentives to source exclusively from the Appellants, after having rejected the Appellants’ argument that it should take into account in its assessment whether the agreements were binding exclusivity agreements under national law; and |
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(iv)

error of law and failure to provide adequate reasoning when determining whether agreements in which the Appellants are named as preferred, main or primary supplier can be qualified as exclusive, by failing to consider and establish whether all the agreements at issue contained incentives to source exclusively from the Appellants, after having rejected the Appellants’ argument that it should take into account in its assessment whether the agreements were binding exclusivity agreements under national law; and

| (v) | error of law in the review of the fine relating to the interpretation and application of the principle of equal treatment: the General Court failed to properly apply the principle of equal treatment when not considering whether the general level of fines had increased in deciding that the Appellants’ fine was not discriminatory. |
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(v)

error of law in the review of the fine relating to the interpretation and application of the principle of equal treatment: the General Court failed to properly apply the principle of equal treatment when not considering whether the general level of fines had increased in deciding that the Appellants’ fine was not discriminatory.

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