# C_2006060EN.01004601.xml

| 11.3.2006 | EN | Official Journal of the European Union | C 60/46 |
| --- | --- | --- | --- |

11.3.2006

EN

Official Journal of the European Union

C 60/46

---

Action brought on 30 December 2005 — Zwicky v Commission

(Case T-457/05)

(2006/C 60/86)

Language of the case: German

Parties

Applicant: Zwicky & Co. AG (Wallisellen, Switzerland) (represented by: J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | annul Article 1(1) of the decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland, or in the alternative for the period from January 1990 up to and including December 1993; |
| --- | --- |

—

annul Article 1(1) of the decision in so far as it declares that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement as regards Sweden, Norway and Finland, or in the alternative for the period from January 1990 up to and including December 1993;

| — | annul Article 2 of the decision in so far as it imposes a fine of EUR 0.174 million on the applicant; |
| --- | --- |

—

annul Article 2 of the decision in so far as it imposes a fine of EUR 0.174 million on the applicant;

| — | in the alternative, reduce the fine imposed in Article 2 of the decision as appropriate; |
| --- | --- |

—

in the alternative, reduce the fine imposed in Article 2 of the decision as appropriate;

| — | annul Article 3 of the decision as regards the applicant; |
| --- | --- |

—

annul Article 3 of the decision as regards the applicant;

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

—

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C(2005) 3452 final of 14 September 2005 in Case 38.337 — PO/Thread (amended by the defendant's decision of 13 October 2005). In the contested decision a fine was imposed on the applicant for infringement of Article 81 EC and Article 53 of the EEA Agreement.

In support of its application the applicant is relying on six pleas in law.

First, it alleges infringement of Article 7 of Regulation No 1/2003. (1) In this connection it submits that the finding as to the extent and duration of the infringements in Article 1(1) of the contested decision is incorrect.

1

In its second plea in law the applicant submits that there has been an infringement of Article 23(2) of Regulation No 1/2003. It considers that the fine imposed on it exceeds the ten percent of its total turnover in the business year preceding the decision. Consequently the imposition of the fine on the applicant in Article 2 of the contested decision is unlawful.

Moreover, Article 2 of the defendant's decision infringes Article 15(2) of Regulation No 17/1962 (2) or Article 23(2) of Regulation No 1/2003. That illegal act is based on the infringement of fundamental principles regarding the assessment of fines.

2

Furthermore, the defendant infringed Article 15(2) of Regulation No 17/1962 or Article 23(2) of Regulation No 1/2003 by way of Article 2 of the contested decision, inasmuch as it incorrectly applied the 1996 Leniency Notice to the detriment of the applicant.

Fifthly, the applicant submits that Article 2 of the contested decision is a violation of the principle of proportionality as insufficient regard was had to the individual position of the applicant in fixing the fine.

Lastly, the applicant submits that the direction, in Article 3 of the Commission's decision, to redress infringements and desist from them in future infringes Article 7(1) of Regulation No 1/2003 as it is neither necessary nor proportionate in the applicant's case.

---

(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).

1

(2)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

2

---