# C_2015107EN.01002802.xml

| 30.3.2015 | EN | Official Journal of the European Union | C 107/28 |
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30.3.2015

EN

Official Journal of the European Union

C 107/28

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Action brought on 13 November 2014 — Infineon Technologies v Commission

(Case T-758/14)

(2015/C 107/38)

Language of the case: English

Parties

Applicant: Infineon Technologies AG (Neubiberg, Germany) (represented by: I. Brinker, U. Soltész, P. Linsmeier, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission in case AT.39574 — Smart Card Chips of 3 September 2014 (notified to the applicant on 5 September 2014), in particular Article 1(a), Article 2(a), and Article 4, second paragraph; |
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annul the decision of the European Commission in case AT.39574 — Smart Card Chips of 3 September 2014 (notified to the applicant on 5 September 2014), in particular Article 1(a), Article 2(a), and Article 4, second paragraph;

| — | in the alternative, order a substantial reduction of the fine imposed on Infineon Technologies AG pursuant to Article 2(a) of the decision; and |
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in the alternative, order a substantial reduction of the fine imposed on Infineon Technologies AG pursuant to Article 2(a) of the decision; and

| — | order the European Commission to pay the applicant’s costs of the present proceedings. |
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order the European Commission to pay the applicant’s costs of the present proceedings.

Pleas in law and main arguments

By its present action, the applicant seeks the annulment of the Commission Decision C(2014) 6250 final of 3 September 2014 in case AT.39574 — Smart Card Chips.

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

| 1. | First plea in law, alleging that the Commission has violated the applicant’s right to be heard, in particular by failing to adopt a new statement of objections. The applicant submits that:






  — | the Commission failed to present the evidence in a way which would have enabled the applicant to identify the conduct complained of and to defend itself properly; |
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1.

First plea in law, alleging that the Commission has violated the applicant’s right to be heard, in particular by failing to adopt a new statement of objections. The applicant submits that:

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the Commission failed to present the evidence in a way which would have enabled the applicant to identify the conduct complained of and to defend itself properly;

| — | the Commission has violated Infineon’s procedural rights by introducing key pieces of evidence at a very late stage and as a result Infineon could not defend itself in a comprehensive reply to a statement of objections and was denied the opportunity to rebut the evidence used against it in an oral hearing; and |
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the Commission has violated Infineon’s procedural rights by introducing key pieces of evidence at a very late stage and as a result Infineon could not defend itself in a comprehensive reply to a statement of objections and was denied the opportunity to rebut the evidence used against it in an oral hearing; and

| — | some of the documents the Commission based itself on have not been disclosed to Infineon and cannot be used against it. |
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some of the documents the Commission based itself on have not been disclosed to Infineon and cannot be used against it.

| 2. | Second plea in law, alleging that the Commission has violated the principle of good administration and Infineon’s rights of defence by applying a ‘fast track process’. |
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2.

Second plea in law, alleging that the Commission has violated the principle of good administration and Infineon’s rights of defence by applying a ‘fast track process’.

| 3. | Third plea in law, alleging that the contacts by Infineon with its competitors referred to in the decision did not violate Article 101(1) TFEU. The applicant submits that:






  — | the evidence on which the Commission relied on lacks credibility and is therefore not sufficient to establish the facts described in the decision beyond reasonable doubt (in dubio pro reo); and |
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3.

Third plea in law, alleging that the contacts by Infineon with its competitors referred to in the decision did not violate Article 101(1) TFEU. The applicant submits that:

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the evidence on which the Commission relied on lacks credibility and is therefore not sufficient to establish the facts described in the decision beyond reasonable doubt (in dubio pro reo); and

| — | the facts described by the Commission do not constitute a ‘restriction by object’ as claimed by the Commission. |
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the facts described by the Commission do not constitute a ‘restriction by object’ as claimed by the Commission.

| 4. | Fourth plea in law, alleging that the Commission made a manifest error in applying the concept of a ‘single and continuous infringement’ (SCI) given that, first, Infineon was only liable for seven bilateral contacts (out of 41 contacts in total), secondly, it was not aware of them and finally, it could also not have reasonably foreseen the bilateral contacts between the other participants. |
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4.

Fourth plea in law, alleging that the Commission made a manifest error in applying the concept of a ‘single and continuous infringement’ (SCI) given that, first, Infineon was only liable for seven bilateral contacts (out of 41 contacts in total), secondly, it was not aware of them and finally, it could also not have reasonably foreseen the bilateral contacts between the other participants.

| 5. | Fifth plea in law, alleging that the Commission has made manifest errors when calculating the fine by not excluding such turnover from the ‘value of sales’ (the basis for the calculation of the fine) which has clearly not been affected by the infringement. |
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5.

Fifth plea in law, alleging that the Commission has made manifest errors when calculating the fine by not excluding such turnover from the ‘value of sales’ (the basis for the calculation of the fine) which has clearly not been affected by the infringement.

| 6. | Sixth plea in law, alleging that the Commission has violated its own fining guidelines and the principle of proportionality, in particular by setting the ‘gravity percentage’ at the same level for all parties. |
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6.

Sixth plea in law, alleging that the Commission has violated its own fining guidelines and the principle of proportionality, in particular by setting the ‘gravity percentage’ at the same level for all parties.

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