# C_2011238EN.01001001.xml

| 13.8.2011 | EN | Official Journal of the European Union | C 238/10 |
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13.8.2011

EN

Official Journal of the European Union

C 238/10

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Appeal brought on 6 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-385/06: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG v European Commission

(Case C-287/11 P)

2011/C 238/15

Language of the case: English

Parties

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka, R. Sauer, Agents)

Appellant:

Other parties to the proceedings: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the Judgment under Appeal; |
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set aside the Judgment under Appeal;

| — | dismiss the action before the General Court in its entirety; |
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dismiss the action before the General Court in its entirety;

| — | require the tree applicants to bear the entirety of the costs of these proceedings and those of the proceedings at first instance. |
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require the tree applicants to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

Pleas in law and main arguments

Pleas in law and main arguments

The Commission bases its Appeal on the following three grounds of appeal:

| | In the first ground of appeal it is submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. Although the General Court recalls the case law on the need to consider the overall body of evidence, the subsequent assessment reveals a very fragmentary approach by which evidence is viewed in isolation and dismissed on a piece-by-piece basis. This affects the analysis of individual contacts, which the Decision considers as manifestations of the Aalberts undertakings' participation in the on-going infringement. Evidence on the participation of the subsidiary companies Simplex and Aquatis in the continuous infringement are assessed by the General Court in isolation, although they belonged to one and the same undertaking (Aalberts). In addition, and with regard to these contacts, the General Court distorts certain key pieces of evidence or at least does not provide sufficient reasons for its conclusions as regards the probative value of certain pieces of evidence. The second ground of appeal is an alternative plea, in that even if its factual findings were to be upheld, the General Court was wrong to annul the decision in full, insofar as it only found a partial mistake in the Decision. The Judgment under Appeal is affected by at least two errors of law:






  — | First
  , the General Court annulled the Commission's Decision on the ground that Aquatis
  had a different degree of awareness of the cartel, compared to the other participants of the FNAS meetings in France. However, in line with established case law, the differing degree of awareness by a cartel participant should not lead to the total annulment of the single and continuous infringement but it could, at most, lead to a partial annulment of the finding of an infringement, and probably a reduction of the fine. |
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In the first ground of appeal it is submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. Although the General Court recalls the case law on the need to consider the overall body of evidence, the subsequent assessment reveals a very fragmentary approach by which evidence is viewed in isolation and dismissed on a piece-by-piece basis. This affects the analysis of individual contacts, which the Decision considers as manifestations of the Aalberts undertakings' participation in the on-going infringement. Evidence on the participation of the subsidiary companies Simplex and Aquatis in the continuous infringement are assessed by the General Court in isolation, although they belonged to one and the same undertaking (Aalberts). In addition, and with regard to these contacts, the General Court distorts certain key pieces of evidence or at least does not provide sufficient reasons for its conclusions as regards the probative value of certain pieces of evidence. The second ground of appeal is an alternative plea, in that even if its factual findings were to be upheld, the General Court was wrong to annul the decision in full, insofar as it only found a partial mistake in the Decision. The Judgment under Appeal is affected by at least two errors of law:

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First
  , the General Court annulled the Commission's Decision on the ground that Aquatis

First

had a different degree of awareness of the cartel, compared to the other participants of the FNAS meetings in France. However, in line with established case law, the differing degree of awareness by a cartel participant should not lead to the total annulment of the single and continuous infringement but it could, at most, lead to a partial annulment of the finding of an infringement, and probably a reduction of the fine.

| — | Second
  , by completely annulling the Decision for Aalberts and its two subsidiaries in a
  case where a partial annulment would have been the most appropriate solution in line with the case law, the General Court exceeded its powers |
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Second
  , by completely annulling the Decision for Aalberts and its two subsidiaries in a

Second

case where a partial annulment would have been the most appropriate solution in line with the case law, the General Court exceeded its powers

| | Finally, the third ground of appeal is also in the alternative, should the Court of Justice dismiss the first and second ground of appeal, as it concerns the calculation of the fine for Simplex and Aquatis in the first period in the event the finding of an infringement in the second period would be annulled in full. The Commission submits that the annulment of Article 2(b)(2) of the Decision lacks motivation and that, if the General Court relied on the so-called 10 % cap under Article 23(2) of Regulation No 1/2003 (1), it ruled ultra petita and violated the principle of the contradictory procedure and thus the right to a fair hearing as this was not discussed during the proceedings at first instance. |
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Finally, the third ground of appeal is also in the alternative, should the Court of Justice dismiss the first and second ground of appeal, as it concerns the calculation of the fine for Simplex and Aquatis in the first period in the event the finding of an infringement in the second period would be annulled in full. The Commission submits that the annulment of Article 2(b)(2) of the Decision lacks motivation and that, if the General Court relied on the so-called 10 % cap under Article 23(2) of Regulation No 1/2003 (1), it ruled ultra petita and violated the principle of the contradictory procedure and thus the right to a fair hearing as this was not discussed during the proceedings at first instance.

1

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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

1

OJ L 1, p. 1

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