# C_2012025EN.01003701.xml

| 28.1.2012 | EN | Official Journal of the European Union | C 25/37 |
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28.1.2012

EN

Official Journal of the European Union

C 25/37

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Appeal brought on 18 November 2011 by Deltafina SpA against the judgment of the General Court (Third Chamber) delivered on 9 September 2011 in Case T-12/06 Deltafina v Commission

(Case C-578/11 P)

(2012/C 25/71)

Language of the case: Italian

Parties

Appellant: Deltafina SpA (represented by: J.-F. Bellis and F. Di Gianni, avvocati)

Other party to the proceedings: European Commission

Form of order sought

| — | Set aside, in whole or in part, the judgment under appeal in so far as it dismisses the appellant’s action; |
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Set aside, in whole or in part, the judgment under appeal in so far as it dismisses the appellant’s action;

| — | Annul, in whole or in part, the Commission’s decision of 20 October 2005 in so far as it concerns the appellant; |
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Annul, in whole or in part, the Commission’s decision of 20 October 2005 in so far as it concerns the appellant;

| — | Cancel or reduce the fine imposed on the appellant, including on the basis of the Court’s unlimited jurisdiction under Article 261 TFEU; |
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Cancel or reduce the fine imposed on the appellant, including on the basis of the Court’s unlimited jurisdiction under Article 261 TFEU;

| — | In the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; |
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In the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

| — | Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court. |
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Order the Commission to pay the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

The appellant relies on four grounds of appeal.

| 1. | The General Court erred in concluding that Deltafina acted in breach of its duty to cooperate by failing to inform the Commission of the disclosure of information concerning its cooperation with the Commission. It should have ruled, instead, on the issue whether, in the light of the agreement reached concerning the ‘rules of the game’ at the meeting between the Commission and Deltafina on 14 March 2002, the Commission was entitled to find that Deltafina had failed to have regard to its duty to cooperate on the basis that it disclosed that it had applied for immunity at the meeting held at APTI’s offices on 4 April 2002.
  In so doing, the General Court substituted itself for the parties by defining ex post the conditions governing Delatafina’s duty to cooperate, failed to rule on the principal plea relied on by Deltafina and infringed its rights of defence. |
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1.

The General Court erred in concluding that Deltafina acted in breach of its duty to cooperate by failing to inform the Commission of the disclosure of information concerning its cooperation with the Commission. It should have ruled, instead, on the issue whether, in the light of the agreement reached concerning the ‘rules of the game’ at the meeting between the Commission and Deltafina on 14 March 2002, the Commission was entitled to find that Deltafina had failed to have regard to its duty to cooperate on the basis that it disclosed that it had applied for immunity at the meeting held at APTI’s offices on 4 April 2002.

In so doing, the General Court substituted itself for the parties by defining ex post the conditions governing Delatafina’s duty to cooperate, failed to rule on the principal plea relied on by Deltafina and infringed its rights of defence.

| 2. | The General Court failed to make adequate or correct findings of fact because, instead of using measures of enquiry provided for in Article 65 of its Rules of Procedure, at the hearing it heard evidence, following an allegedly informal, and thus defective, procedure from two participants at the meeting of 24 March 2002 on the subject of the ‘rules of the game’, without having regard, therefore, to the guarantees laid down in Articles 68 and 76 of the Rules of Procedure, and disregarded fundamental rules on obtaining evidence. |
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2.

The General Court failed to make adequate or correct findings of fact because, instead of using measures of enquiry provided for in Article 65 of its Rules of Procedure, at the hearing it heard evidence, following an allegedly informal, and thus defective, procedure from two participants at the meeting of 24 March 2002 on the subject of the ‘rules of the game’, without having regard, therefore, to the guarantees laid down in Articles 68 and 76 of the Rules of Procedure, and disregarded fundamental rules on obtaining evidence.

| 3. | The General Court failed to observe the principle that it should adjudicate within a reasonable time. The proceedings before the General Court were excessively lengthy, lasting five years and eight months, more than 43 months elapsing between the end of the written procedure and the decision to open the oral procedure. |
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3.

The General Court failed to observe the principle that it should adjudicate within a reasonable time. The proceedings before the General Court were excessively lengthy, lasting five years and eight months, more than 43 months elapsing between the end of the written procedure and the decision to open the oral procedure.

| 4. | Lastly, the General Court unlawfully refused to rule, in accordance with its unlimited jurisdiction, on the argument that the fine imposed on Deltafina was disproportionate and discriminatory, in so far as the Commission applied the same level of reduction to the fine of Deltafina as that of Dimon Italia, in spite of the substantial difference between their respective contributions to the finding of an infringement. Case T-13/03 Nintendo v Commission established the principle that the Commission is not entitled to disregard the principle of equal treatment in appraising the cooperation provided by undertakings during the administrative procedure, which must be compared from both a chronological point of view and a qualitative point of view. |
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4.

Lastly, the General Court unlawfully refused to rule, in accordance with its unlimited jurisdiction, on the argument that the fine imposed on Deltafina was disproportionate and discriminatory, in so far as the Commission applied the same level of reduction to the fine of Deltafina as that of Dimon Italia, in spite of the substantial difference between their respective contributions to the finding of an infringement. Case T-13/03 Nintendo v Commission established the principle that the Commission is not entitled to disregard the principle of equal treatment in appraising the cooperation provided by undertakings during the administrative procedure, which must be compared from both a chronological point of view and a qualitative point of view.

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