# C_2016016EN.01004001.xml

| 18.1.2016 | EN | Official Journal of the European Union | C 16/40 |
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18.1.2016

EN

Official Journal of the European Union

C 16/40

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Action brought on 11 September 2015 — Silver Plastics and Johannes Reifenhäuser v Commission

(Case T-582/15)

(2016/C 016/50)

Language of the case: German

Parties

Parties

Applicants: Silver Plastics GmbH & Co. KG (Troisdorf, Germany) and Johannes Reifenhäuser Holding GmbH & Co. KG (Troisdorf) (represented by: M. Wirtz, S. Möller and W. Carstensen, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | annul the Commission’s decision of 24 June 2015 in Case AT.39563 in so far as it concerns the applicants; |
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annul the Commission’s decision of 24 June 2015 in Case AT.39563 in so far as it concerns the applicants;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants to an amount that, having regard to the fact that the applicants do not form an economic entity, does not exceed 10 % of the first applicant’s turnover during the last full business year before the adoption of the decision imposing the fine; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants to an amount that, having regard to the fact that the applicants do not form an economic entity, does not exceed 10 % of the first applicant’s turnover during the last full business year before the adoption of the decision imposing the fine;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants to an amount that, having regard to the divestment of the Maschinenfabrik company, does not exceed 10 % of each of the first or second applicants’ respective turnover during the last full business year; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants to an amount that, having regard to the divestment of the Maschinenfabrik company, does not exceed 10 % of each of the first or second applicants’ respective turnover during the last full business year;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants for the area of ‘North-West Europe’ (‘NWE’) by determining the basic amount of the fine only on the basis of the turnover from expanded polystyrene (EPS) trays; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants for the area of ‘North-West Europe’ (‘NWE’) by determining the basic amount of the fine only on the basis of the turnover from expanded polystyrene (EPS) trays;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants for the NWE area by determining distinct fines for the EPS tray and polypropylene (PP) tray product ranges, on the basis of the different periods of infringement; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants for the NWE area by determining distinct fines for the EPS tray and polypropylene (PP) tray product ranges, on the basis of the different periods of infringement;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants by reducing the share of turnover used in determining the basic amount of the fine to a factor which appropriately reflects the fact that the practices employed by the first applicant in the NWE area and in France, or in the alternative only in the NEW area, ought to have been characterised as mere exchanges of information and not as hardcore price agreements, and by waiving the hardcore additional amount for the NWE area and/or France; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants by reducing the share of turnover used in determining the basic amount of the fine to a factor which appropriately reflects the fact that the practices employed by the first applicant in the NWE area and in France, or in the alternative only in the NEW area, ought to have been characterised as mere exchanges of information and not as hardcore price agreements, and by waiving the hardcore additional amount for the NWE area and/or France;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants by assessing the fine for the NWE area solely on the basis of the turnover achieved in Germany; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants by assessing the fine for the NWE area solely on the basis of the turnover achieved in Germany;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants for the NWE area by waiving the hardcore additional amount, or in the alternative by reducing the hardcore additional amount, having regard to the fact that the infringements in the NWE area were appreciably less capable of distorting competition than the infringements in the other geographical areas; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants for the NWE area by waiving the hardcore additional amount, or in the alternative by reducing the hardcore additional amount, having regard to the fact that the infringements in the NWE area were appreciably less capable of distorting competition than the infringements in the other geographical areas;

| — | in the alternative, reduce the fine imposed jointly and severally on the applicants for the areas of NWE and France to an appropriate amount; |
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in the alternative, reduce the fine imposed jointly and severally on the applicants for the areas of NWE and France to an appropriate amount;

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

Pleas in law and main arguments

Pleas in law and main arguments

The applicants claim that the Court should annul in part Commission Decision C (2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 — Retail food packaging).

In support of the action, the applicants rely on seven pleas in law.

| 1. | First plea in law: infringement of Article 7(1) and Article 23(3) of Regulation (EC) No 1/2003 (1) in conjunction with Article 101(1) TFEU
  The applicants claim that the Commission incorrectly characterised the practices employed by the first applicant in the geographical area of North-West Europe (‘NWE’) as hardcore price agreements taking the form of a single continuous infringement concerning the production and sales of polypropylene and polystyrene trays for the food industry. |
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1.

First plea in law: infringement of Article 7(1) and Article 23(3) of Regulation (EC) No 1/2003 (1) in conjunction with Article 101(1) TFEU

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The applicants claim that the Commission incorrectly characterised the practices employed by the first applicant in the geographical area of North-West Europe (‘NWE’) as hardcore price agreements taking the form of a single continuous infringement concerning the production and sales of polypropylene and polystyrene trays for the food industry.

| 2. | Second plea in law: infringement of Article 296(2) TFEU and Article 2 of Regulation (EG) No 1/2003 in conjunction with the principle of examination by the Commission of its own motion
  By this plea in law the applicants claim that the Commission has not sufficiently satisfied the burden of proof incumbent on it and its duty to state reasons. |
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2.

Second plea in law: infringement of Article 296(2) TFEU and Article 2 of Regulation (EG) No 1/2003 in conjunction with the principle of examination by the Commission of its own motion

By this plea in law the applicants claim that the Commission has not sufficiently satisfied the burden of proof incumbent on it and its duty to state reasons.

| 3. | Third plea in law: infringement of the procedural rights protected as fundamental rights under Article 6(1), (2) and (3)(d) of the European Convention on Human Rights and Articles 47(2), 48 and 52 of the Charter of Fundamental Rights of the European Union
  The applicants claim that the Commission infringed their rights to equality of arms and to a fair trial in that the calling and examination of witnesses on their behalf named by the applicants and the adversarial examination of a witness against them were, following several requests, refused. |
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3.

Third plea in law: infringement of the procedural rights protected as fundamental rights under Article 6(1), (2) and (3)(d) of the European Convention on Human Rights and Articles 47(2), 48 and 52 of the Charter of Fundamental Rights of the European Union

The applicants claim that the Commission infringed their rights to equality of arms and to a fair trial in that the calling and examination of witnesses on their behalf named by the applicants and the adversarial examination of a witness against them were, following several requests, refused.

| 4. | Fourth plea in law: infringement of paragraphs 24, 25 and 26 of the Leniency Notice (2)

  Furthermore, the applicants claim that no reduction in the fine was granted to them for the evidence that they adduced on the alleged infringements in the NWE area, despite the fact that the conditions for such a reduction were satisfied. |
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Fourth plea in law: infringement of paragraphs 24, 25 and 26 of the Leniency Notice (2)

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Furthermore, the applicants claim that no reduction in the fine was granted to them for the evidence that they adduced on the alleged infringements in the NWE area, despite the fact that the conditions for such a reduction were satisfied.

| 5. | Fifth plea in law: infringement of the first and second sentences of Article 23(2) of Regulation (EC) No 1/2003 in conjunction with Article 101(1) TFEU
  The Commission incorrectly assumed that the applicants formed a single economic entity and therefore formed an undertaking within the meaning of the abovementioned provisions. |
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5.

Fifth plea in law: infringement of the first and second sentences of Article 23(2) of Regulation (EC) No 1/2003 in conjunction with Article 101(1) TFEU

The Commission incorrectly assumed that the applicants formed a single economic entity and therefore formed an undertaking within the meaning of the abovementioned provisions.

| 6. | Sixth plea in law: infringement of the second sentence of Article 23(2) of Regulation (EC) No 1/2003
  The applicants claim that, in so far as it did not take into account the second applicant’s termination of its participation in Reifenhäuser GmbH & Co. KG Maschinenfabrik, which had taken legal effect at the time of the decision imposing the fine, and included the turnover of that separated undertaking when assessing the fine, the Commission exceeded the statutory limit for fines of 10 % of the turnover of the undertaking at issue. |
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6.

Sixth plea in law: infringement of the second sentence of Article 23(2) of Regulation (EC) No 1/2003

The applicants claim that, in so far as it did not take into account the second applicant’s termination of its participation in Reifenhäuser GmbH & Co. KG Maschinenfabrik, which had taken legal effect at the time of the decision imposing the fine, and included the turnover of that separated undertaking when assessing the fine, the Commission exceeded the statutory limit for fines of 10 % of the turnover of the undertaking at issue.

| 7. | Seventh plea in law: infringement of Article 23(2)(a) and (3) of Regulation (EC) No 1/2003 in conjunction with paragraphs 19, 20 and 25 of Guidelines on the method of setting fines (3) and the principle of equal treatment
  By this plea in law the applicants claim that, for all cartels covered by the decision imposing the fine and for all relevant undertakings, a uniform share of turnover of 16 % for determining the basic amount and a uniform hardcore additional amount of 16 % were fixed, to the detriment of the applicants, despite the fact that both the structures of the individual cartels and the individual participation of the undertakings differed greatly from one another. |
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7.

Seventh plea in law: infringement of Article 23(2)(a) and (3) of Regulation (EC) No 1/2003 in conjunction with paragraphs 19, 20 and 25 of Guidelines on the method of setting fines (3) and the principle of equal treatment

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By this plea in law the applicants claim that, for all cartels covered by the decision imposing the fine and for all relevant undertakings, a uniform share of turnover of 16 % for determining the basic amount and a uniform hardcore additional amount of 16 % were fixed, to the detriment of the applicants, despite the fact that both the structures of the individual cartels and the individual participation of the undertakings differed greatly from one another.

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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 (OJ 2003 L 1, p. 1).

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(2)  Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

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(3)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

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