# C_2015389EN.01001801.xml

| 23.11.2015 | EN | Official Journal of the European Union | C 389/18 |
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23.11.2015

EN

Official Journal of the European Union

C 389/18

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Appeal brought on 4 September 2015 by FSL Holdings, Firma Léon Van Parys, Pacific Fruit Company Italy SpA against the judgment of the General Court (Second Chamber) delivered on 16 June 2015 in Case T-655/11: FSL Holdings and others v European Commission

(Case C-469/15 P)

(2015/C 389/20)

Language of the case: English

Parties

Parties

Appellants: FSL Holdings, Firma Léon Van Parys, Pacific Fruit Company Italy SpA (represented by: P. Vlaemminck, C Verdonck, B. Van Vooren, J. Auwerx, advocaten)

Appellants:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| — | In principal, set aside the judgment under appeal for use of evidence obtained in complete disregard of the procedure laid down for gathering it and for misapplication of the 2002 Leniency notice, and, consequently, annul the Commission’s decision of 12 October 2011 in its entirety; |
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In principal, set aside the judgment under appeal for use of evidence obtained in complete disregard of the procedure laid down for gathering it and for misapplication of the 2002 Leniency notice, and, consequently, annul the Commission’s decision of 12 October 2011 in its entirety;

| — | In the alternative, partially set aside the judgment under appeal to the extent that the General Court has not performed a full judicial review of the fine imposed on the Appellants and, as a result, substantially reduce the fine imposed on the Appellants by virtue of the judgment under appeal; |
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In the alternative, partially set aside the judgment under appeal to the extent that the General Court has not performed a full judicial review of the fine imposed on the Appellants and, as a result, substantially reduce the fine imposed on the Appellants by virtue of the judgment under appeal;

| — | In the further alternative, to partially set aside the judgment under appeal to the extent that the General Court has not correctly established that the infringement had as its object or effect the restriction of competition, and consequently, to refer the case back to the General Court, unless the Court considers that it is sufficiently well-informed to annul the Commission’s decision; |
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In the further alternative, to partially set aside the judgment under appeal to the extent that the General Court has not correctly established that the infringement had as its object or effect the restriction of competition, and consequently, to refer the case back to the General Court, unless the Court considers that it is sufficiently well-informed to annul the Commission’s decision;

| — | In any event, to order the Commission to pay the Appellants’ costs of the proceedings before the Court of Justice and the General Court. |
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In any event, to order the Commission to pay the Appellants’ costs of the proceedings before the Court of Justice and the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

The Appellants base their appeal on four grounds of appeal:

| — | By the first ground of appeal, the Appellants submit that the General Court erred in law and infringed their rights of defence and the essential procedural requirements when rejecting the Appellants’ claim regarding the unlawfulness of the transfer of the documents gathered by the Italian tax authorities during a national tax investigation to the Commission, and the consequences of such unlawfulness. First, the General Court erred in law by ruling that the Commission does not have a distinct obligation under EU law to prevent the fundamental rights of defence from being irremediably compromised during the administrative phase of a competition inquiry. Second, the General Court erred in law by disregarding the Commission’s infringement of the Appellants’ rights of defence and essential procedural requirements as reflected in Article 12(2) of Regulation 1/2003 (1) Third, the General Court erred in law by distorting the clear meaning of the evidence before it, when it ruled that the unlawfulness of the acquisition of documents used in evidence by the Commission was irrelevant. |
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By the first ground of appeal, the Appellants submit that the General Court erred in law and infringed their rights of defence and the essential procedural requirements when rejecting the Appellants’ claim regarding the unlawfulness of the transfer of the documents gathered by the Italian tax authorities during a national tax investigation to the Commission, and the consequences of such unlawfulness. First, the General Court erred in law by ruling that the Commission does not have a distinct obligation under EU law to prevent the fundamental rights of defence from being irremediably compromised during the administrative phase of a competition inquiry. Second, the General Court erred in law by disregarding the Commission’s infringement of the Appellants’ rights of defence and essential procedural requirements as reflected in Article 12(2) of Regulation 1/2003 (1) Third, the General Court erred in law by distorting the clear meaning of the evidence before it, when it ruled that the unlawfulness of the acquisition of documents used in evidence by the Commission was irrelevant.

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| — | By the second ground of appeal, the Appellants submit that the General Court erred in law by not criticising the Commission for granting immunity to the immunity applicant regarding Southern Europe and thus not consistently applying the 2002 Leniency Notice. More in particular, the Appellants claim that no immunity should have been granted to the immunity applicant regarding Southern Europe and, consequently, that all oral statements of the immunity applicant and information obtained following information requests based on these oral statements should have been removed from the file in the case at hand. |
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By the second ground of appeal, the Appellants submit that the General Court erred in law by not criticising the Commission for granting immunity to the immunity applicant regarding Southern Europe and thus not consistently applying the 2002 Leniency Notice. More in particular, the Appellants claim that no immunity should have been granted to the immunity applicant regarding Southern Europe and, consequently, that all oral statements of the immunity applicant and information obtained following information requests based on these oral statements should have been removed from the file in the case at hand.

| — | In the alternative, by the third ground of appeal, the Appellants submit that the General Court erred in law since it failed to provide effective judicial protection against a penalty of criminal nature imposed on them by the Commission, in spite of the unlimited jurisdiction imposed on it by Article 31 of Regulation 1/2003 and the principle of effective judicial protection, as enshrined in Article 6 of the ECHR and Article 47 of the Charter. By failing to provide such effective judicial protection, the Appellants further claim that the General Court has miscalculated the fine. |
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In the alternative, by the third ground of appeal, the Appellants submit that the General Court erred in law since it failed to provide effective judicial protection against a penalty of criminal nature imposed on them by the Commission, in spite of the unlimited jurisdiction imposed on it by Article 31 of Regulation 1/2003 and the principle of effective judicial protection, as enshrined in Article 6 of the ECHR and Article 47 of the Charter. By failing to provide such effective judicial protection, the Appellants further claim that the General Court has miscalculated the fine.

| — | In the further alternative, by the fourth ground of appeal, the Appellants submit that the General Court has erred in law by misinterpreting the notion of an infringement by object, which in term has also led to an erroneous legal categorisation of the facts and a violation of the Appellants’ right of defence. |
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In the further alternative, by the fourth ground of appeal, the Appellants submit that the General Court has erred in law by misinterpreting the notion of an infringement by object, which in term has also led to an erroneous legal categorisation of the facts and a violation of the Appellants’ right of defence.

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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 L 1, p. 1

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