# C_2015138EN.01004301.xml

| 27.4.2015 | EN | Official Journal of the European Union | C 138/43 |
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27.4.2015

EN

Official Journal of the European Union

C 138/43

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Appeal brought on 24 February 2015 by H & R ChemPharm GmbH against the judgment delivered on 12 December 2014 in Case T-551/08 H & R ChemPharm GmbH v European Commission

(Case C-95/15 P)

(2015/C 138/57)

Language of the case: German

Parties

Parties

Appellant: H & R ChemPharm GmbH (represented by: M. Klusmann and S. Thomas, lawyers)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment of the General Court (Third Chamber) of 12 December 2014 in Case T-551/08 in so far as it affects the appellant; |
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set aside the judgment of the General Court (Third Chamber) of 12 December 2014 in Case T-551/08 in so far as it affects the appellant;

| — | in the alternative, reduce appropriately the amount of the fine in the amount of EUR 22 million imposed on the applicant under Article 2 of the contested decision of the defendant of 1 October 2008; |
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in the alternative, reduce appropriately the amount of the fine in the amount of EUR 22 million imposed on the applicant under Article 2 of the contested decision of the defendant of 1 October 2008;

| — | in the further alternative, refer the case back to the General Court of the European Union for a fresh decision; |
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in the further alternative, refer the case back to the General Court of the European Union for a fresh decision;

| — | cancel the imposition of Court costs in the amount of EUR 10  000 under Article 90(a) of the Rules of Procedure of the Court; |
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cancel the imposition of Court costs in the amount of EUR 10  000 under Article 90(a) of the Rules of Procedure of the Court;

| — | 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 appeal is against the judgment of the General Court of (Third Chamber) of 12 December 2014 (Reg. No 651533) in Case T-551/08 H & R ChemPharm GmbH v Commission, by which the Court rejected the application to annul Commission Decision No C(2008) 5476 final of 1 October 2008 (Case COMP/39181 — Candle Waxes), in so far as it concerns the appellant.

H & R ChemPharm GmbH

Commission

The appellant (and applicant at first instance) bases its appeal on the following grounds of appeal:

| 1. | By its first ground of appeal, the appellant alleges, inter alia, an infringement of Article 81 EC [101 TFEU] due to contradictory and insufficient reasoning in the judgment relating to the appellant’s business structure and responsibility, on the basis of which the General Court held that the appellant infringed Article 81 EC. The fundamental contradiction consists in the fact that the General Court treated the appellant and the undertaking Tudapetrol, which is not connected with the appellant, as a single entity for the purposes of liability for the infringement, but in the context of the imposition of the fine treated them as two separate undertakings. Since it is not clear from the General Court’s reasoning whether the appellant and Tudapetrol make up a single undertaking or whether they are two different undertakings, the appellant alleges in addition an infringement of the obligation to state reasons (Article 296 TFEU) and of its fundamental rights of defence. |
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1.

By its first ground of appeal, the appellant alleges, inter alia, an infringement of Article 81 EC [101 TFEU] due to contradictory and insufficient reasoning in the judgment relating to the appellant’s business structure and responsibility, on the basis of which the General Court held that the appellant infringed Article 81 EC. The fundamental contradiction consists in the fact that the General Court treated the appellant and the undertaking Tudapetrol, which is not connected with the appellant, as a single entity for the purposes of liability for the infringement, but in the context of the imposition of the fine treated them as two separate undertakings. Since it is not clear from the General Court’s reasoning whether the appellant and Tudapetrol make up a single undertaking or whether they are two different undertakings, the appellant alleges in addition an infringement of the obligation to state reasons (Article 296 TFEU) and of its fundamental rights of defence.

| 2. | By its second ground of appeal, the appellant alleges a wrongful assessment of the behaviour of an employee who performed several duties in parallel at different legally distinct undertakings. The appellant disputes the fact that it is made responsible for the behaviour of that employee without the General Court ruling on whether the employee undertook the tasks on behalf of the appellant. The General Court’s legal position in that regard infringes Article 81 EC. In addition, the Court infringed the fair hearing principle, since it rejected the appellant’s evidence regarding the actual activities of the employee without legally justifiable grounds (infringement of Article 6 ECHR). |
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2.

By its second ground of appeal, the appellant alleges a wrongful assessment of the behaviour of an employee who performed several duties in parallel at different legally distinct undertakings. The appellant disputes the fact that it is made responsible for the behaviour of that employee without the General Court ruling on whether the employee undertook the tasks on behalf of the appellant. The General Court’s legal position in that regard infringes Article 81 EC. In addition, the Court infringed the fair hearing principle, since it rejected the appellant’s evidence regarding the actual activities of the employee without legally justifiable grounds (infringement of Article 6 ECHR).

| 3. | By its third ground of appeal, the appellant alleges decisive mistakes in the interpretation of Article 23(3) of Regulation No 1/2003 (1) with respect to turnover on which the fine is to be based. Those mistakes are due to the fact that the Court included turnover of a third-party undertaking in the calculation of the fine, although it is not disputed that that undertaking did not participate in the infringement and is not economically connected with the appellant. The judgment is also vitiated by a failure to state reasons, on the basis of which third-party turnover was calculated during the setting of the fine despite the lack of economic unity. The General Court’s reasoning therefore infringes not only Article 23(3) of Regulation No 1/2003, but also the requirements in the case-law relating to the proper statement of reasons (Article 296 TFEU). |
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3.

By its third ground of appeal, the appellant alleges decisive mistakes in the interpretation of Article 23(3) of Regulation No 1/2003 (1) with respect to turnover on which the fine is to be based. Those mistakes are due to the fact that the Court included turnover of a third-party undertaking in the calculation of the fine, although it is not disputed that that undertaking did not participate in the infringement and is not economically connected with the appellant. The judgment is also vitiated by a failure to state reasons, on the basis of which third-party turnover was calculated during the setting of the fine despite the lack of economic unity. The General Court’s reasoning therefore infringes not only Article 23(3) of Regulation No 1/2003, but also the requirements in the case-law relating to the proper statement of reasons (Article 296 TFEU).

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| 4. | By its fourth ground of appeal, it is claimed in the first place that the General Court, during the setting of the fine, took into consideration turnover of undertakings which was achieved only at the end of the period to which the alleged infringements relate, and applied that turnover to the entire time of the alleged participation. That is incompatible with the practice of the General Court in the parallel judgment in Esso
   (2). In the Esso judgment, that court ruled on the same issue and held that such conduct on the part of the Commission leads to an artificial increase of the turnover on which the calculation of the fine is based. That discrimination constitutes an infringement of Article 23(3) of Regulation No 1/2003. Since the Court did not take a position on the appellant’s objections, the judgment under appeal is also vitiated by a failure to state reasons (Article 296 TFEU). The appellant also claims that the Court erred in its calculation of the turnover, which resulted in the turnover being taken into consideration twice, in infringement of Article 23(3) of Regulation No 1/20003. |
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4.

By its fourth ground of appeal, it is claimed in the first place that the General Court, during the setting of the fine, took into consideration turnover of undertakings which was achieved only at the end of the period to which the alleged infringements relate, and applied that turnover to the entire time of the alleged participation. That is incompatible with the practice of the General Court in the parallel judgment in Esso
   (2). In the Esso judgment, that court ruled on the same issue and held that such conduct on the part of the Commission leads to an artificial increase of the turnover on which the calculation of the fine is based. That discrimination constitutes an infringement of Article 23(3) of Regulation No 1/2003. Since the Court did not take a position on the appellant’s objections, the judgment under appeal is also vitiated by a failure to state reasons (Article 296 TFEU). The appellant also claims that the Court erred in its calculation of the turnover, which resulted in the turnover being taken into consideration twice, in infringement of Article 23(3) of Regulation No 1/20003.

Esso

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Esso

| 5. | By its fifth ground of appeal, the appellant alleges several errors in law in the calculation of the fine, including in particular disproportionality of the fine imposed on the appellant in relation to other undertakings which also participated in the alleged infringement (infringement of Article 23(3) of Regulation No 1/2003). The appellant claims that the Court failed to take into consideration differences between the wrong committed by the appellant and that committed by other participating undertakings, and that it disproportionately assessed the size of the undertaking. |
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5.

By its fifth ground of appeal, the appellant alleges several errors in law in the calculation of the fine, including in particular disproportionality of the fine imposed on the appellant in relation to other undertakings which also participated in the alleged infringement (infringement of Article 23(3) of Regulation No 1/2003). The appellant claims that the Court failed to take into consideration differences between the wrong committed by the appellant and that committed by other participating undertakings, and that it disproportionately assessed the size of the undertaking.

| 6. | By its sixth ground of appeal, the appellant alleges that the Court erred in law when fixing costs in relation to the imposition of additional Court costs which were allegedly caused by the appellant, without further substantiating that imposition (infringement of Article 90(a) of the Rules of Procedure of the Court and of Article 296 TFEU and Article 6 ECHR). Those costs do not exist, and the appellant was not heard before the decision on costs was made. |
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6.

By its sixth ground of appeal, the appellant alleges that the Court erred in law when fixing costs in relation to the imposition of additional Court costs which were allegedly caused by the appellant, without further substantiating that imposition (infringement of Article 90(a) of the Rules of Procedure of the Court and of Article 296 TFEU and Article 6 ECHR). Those costs do not exist, and the appellant was not heard before the decision on costs was made.

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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)  Case T-540/08, EU:T:2014:630.

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