# C_2007223EN.01000501.xml

| 22.9.2007 | EN | Official Journal of the European Union | C 223/5 |
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22.9.2007

EN

Official Journal of the European Union

C 223/5

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Appeal brought on 12 July 2007 by Papierfabrik August Koehler AG against the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 in Joined Cases T-109/02 Bolloré v Commission, T-118/02 Arjo Wiggins Appleton v Commission, T-122/02 Mitsubishi HiTec Paper Bielefeld v Commission, T-125/02 Papierfabrik August Koehler v Commission, T-126/02 M-real Zanders v Commission, T-128/02 Papeteries Mougeot v Commission, T-129/02 Torraspapel v Commission, T-132/02 Distribuidora Vizcaína de Papeles v Commission, and T-136/02 Papelera Guipuzcoana de Zicuñaga v Commission

Bolloré

Commission

Arjo Wiggins Appleton

Commission

Mitsubishi HiTec Paper Bielefeld

Commission

Papierfabrik August Koehler

Commission

M-real Zanders

Commission

Papeteries Mougeot

Commission

Torraspapel

Commission

Distribuidora Vizcaína de Papeles

Commission

Papelera Guipuzcoana de Zicuñaga

Commission

(Case C-322/07 P)

(2007/C 223/05)

Language of the case: German

Parties

Appellant: Papierfabrik August Koehler AG (represented by: I. Brinker, S. Hirsbrunner, lawyers, J. Schwarze, University Professor)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | Annulment of the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 (Case T-125/02) in so far as it affects the appellant; |
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Annulment of the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 (Case T-125/02) in so far as it affects the appellant;

| — | Annulment of Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) (1) in so far as it affects the appellant;
  In the alternative: a reduction of the fine imposed on the appellant in Article 3 of that decision; |
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Annulment of Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) (1) in so far as it affects the appellant;

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In the alternative: a reduction of the fine imposed on the appellant in Article 3 of that decision;

| — | In the alternative to the second indent above: referral of the matter back to the Court of First Instance for determination in accordance with the judgment of the Court of Justice; |
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In the alternative to the second indent above: referral of the matter back to the Court of First Instance for determination in accordance with the judgment of the Court of Justice;

| — | In any event, an order for the Commission to pay the costs incurred by the appellant both before the Court of First Instance and the Court of Justice. |
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In any event, an order for the Commission to pay the costs incurred by the appellant both before the Court of First Instance and the Court of Justice.

Pleas in law and main arguments

The appellant raises the following pleas: the Court of First Instance's reasoning in relation to the setting of the amount of the fine infringes both the principles of equal treatment and proportionality. The appellant thus claims that substantive Community law has been infringed. The Court erroneously assumed it to be insignificant that the appellant is a family business and, in comparison with the other undertakings, does not have direct access to capital markets. Instead the Court wrongly pointed out that an undertaking cannot rely to its advantage on an infringement of law which was committed to the benefit of other undertakings. However, the appellant did not rely on that argument in any way. The Court did not appropriately assess the structural differences between the appellant and the other undertakings which are accused of committing an infringement. The Court thereby infringed the principles of equal treatment and proportionality.

Moreover, the Court wrongly assumed that the appellant was a party to the infringement in the period prior to October 1993. In that regard, the Court gave insufficient proof, assessed that proof contradictorily and, moreover, falsified it. It also infringed the presumption of innocence and the appellant's rights of defence. The appellant thus claims that there was a procedural error. The Court's reasoning for its finding that the official meetings of the AEMCP association between January 1992 and September 1993 served as a setting for fixing prices on the European market is insufficient and contradictory. Furthermore, the appellant alleges that the Court committed legal errors in assuming that the appellant participated in unofficial meetings, in which prices at national level were discussed.

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(1)  OJ 2004 L 115, p. 1.

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