# C_2014339EN.01001501.xml

| 29.9.2014 | EN | Official Journal of the European Union | C 339/15 |
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29.9.2014

EN

Official Journal of the European Union

C 339/15

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Appeal brought on 31 July 2014 by Toshiba Corporation against the judgment of the General Court (Third Chamber) delivered on 21 May 2014 in Case T-519/09: Toshiba Corporation v European Commission

(Case C-373/14 P)

2014/C 339/18

Language of the case: English

Parties

Parties

Appellant: Toshiba Corporation (represented by: J. F. MacLennan, solicitor, A. Schulz, Rechtsanwalt, J. Jourdan, and P. Berghe, avocats)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Set aside the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission insofar as it rejected Toshiba’s claim for annulment of Articles 1 and 2 of the Decision of the European Commission in case COMP/39.129 — Power Transformers and annul the Decision; |
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Set aside the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission insofar as it rejected Toshiba’s claim for annulment of Articles 1 and 2 of the Decision of the European Commission in case COMP/39.129 — Power Transformers and annul the Decision;

| — | Alternatively, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law; and, in any event |
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Alternatively, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law; and, in any event

| — | Award Toshiba its costs, including its costs in the proceedings before the General Court. |
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Award Toshiba its costs, including its costs in the proceedings before the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

The applicant challenges the judgment of the General Court of 21 May 2014 in Case T-519/09 Toshiba Corporation v European Commission (the ‘Contested Judgment’), in which Toshiba Corporation (‘Toshiba’) applied for the annulment of a decision of the European Commission in case COMP/39.129 — Power Transformers. In the judgment under appeal, the General Court dismissed Toshiba’s application on all grounds and ordered Toshiba to pay the costs. In the present appeal, Toshiba submits that the General Court committed the following errors of law:

| — | First plea: Toshiba submits that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market (1) on the ground that barriers to entry on the EEA market were not insurmountable and (2) on the basis of the existence of the Gentlemen’s Agreement, instead it should have verified if the Japanese producers had real concrete possibilities to enter the EEA market and that such an entry was an economically viable strategy. In the absence of potential competition between Japanese and European producers, the Gentlemen’s Agreement could not infringe Article 81 EC and the Commission lacked jurisdiction to pursue a case. The Contested Judgment and Contested Decision should therefore be annulled as regards Toshiba. |
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First plea: Toshiba submits that the General Court applied the wrong legal test when considering that the Japanese manufacturers of power transformers were potential competitors on the EEA market (1) on the ground that barriers to entry on the EEA market were not insurmountable and (2) on the basis of the existence of the Gentlemen’s Agreement, instead it should have verified if the Japanese producers had real concrete possibilities to enter the EEA market and that such an entry was an economically viable strategy. In the absence of potential competition between Japanese and European producers, the Gentlemen’s Agreement could not infringe Article 81 EC and the Commission lacked jurisdiction to pursue a case. The Contested Judgment and Contested Decision should therefore be annulled as regards Toshiba.

First plea

| — | Second plea: Toshiba submits that the General Court distorted the content of a letter in which another party to the proceedings stated that it would not challenge the Commission’s findings. The Commission considered that the letter superseded that party’s previous statements confirming that it had not made any sales in the EEA. However, this is a distortion of the evidence on which the General Court relies to find that the barriers to entry on the EEA market were not insurmountable. Toshiba therefore submits that the Contested Judgment and Contested Decision should be annulled. |
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Second plea: Toshiba submits that the General Court distorted the content of a letter in which another party to the proceedings stated that it would not challenge the Commission’s findings. The Commission considered that the letter superseded that party’s previous statements confirming that it had not made any sales in the EEA. However, this is a distortion of the evidence on which the General Court relies to find that the barriers to entry on the EEA market were not insurmountable. Toshiba therefore submits that the Contested Judgment and Contested Decision should be annulled.

Second plea

| — | Third plea: Toshiba submits that the General Court gave contradictory reasoning, applied the wrong legal test for public distancing and violated the principle of personal liability by considering that Toshiba’s argument regarding its non-participation in the 2003 Zurich meeting was ‘ineffective’. The Contested Judgment and Contested Decision should therefore be annulled in so far as they conclude that Toshiba continued to participate in the Gentlemen’s Agreement until May 2003. |
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Third plea: Toshiba submits that the General Court gave contradictory reasoning, applied the wrong legal test for public distancing and violated the principle of personal liability by considering that Toshiba’s argument regarding its non-participation in the 2003 Zurich meeting was ‘ineffective’. The Contested Judgment and Contested Decision should therefore be annulled in so far as they conclude that Toshiba continued to participate in the Gentlemen’s Agreement until May 2003.

Third plea

| — | Fourth plea: Toshiba submits that the General Court gave the wrong interpretation to paragraph 18 of the Fining Guidelines in applying global market shares as a proxy for the parties’ weight in the infringement. The Contested Judgment and Contested Decision should therefore be annulled in so far as they calculate Toshiba’s fine on the basis of Toshiba’s worldwide market share and Toshiba’s fine should be reduced accordingly. |
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Fourth plea: Toshiba submits that the General Court gave the wrong interpretation to paragraph 18 of the Fining Guidelines in applying global market shares as a proxy for the parties’ weight in the infringement. The Contested Judgment and Contested Decision should therefore be annulled in so far as they calculate Toshiba’s fine on the basis of Toshiba’s worldwide market share and Toshiba’s fine should be reduced accordingly.

Fourth plea

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