# C_2013055EN.01000302.xml

| 23.2.2013 | EN | Official Journal of the European Union | C 55/3 |
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23.2.2013

EN

Official Journal of the European Union

C 55/3

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Appeal brought on 10 December 2012 by Guardian Industries Corp., Guardian Europe Sàrl against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-82/08: Guardian Industries Corp., Guardian Europe Sàrl v European Commission

(Case C-580/12 P)

2013/C 55/05

Language of the case: English

Parties

Parties

Appellants: Guardian Industries Corp., Guardian Europe Sàrl (represented by: S. Völcker, Rechtsanwalt, F. Louis, avocat, H.-G. Kamann, Rechtsanwalt, C. O'Daly, Solicitor)

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:

| — | set aside the Judgment in so far as the General Court upheld the Decision’s exclusion of captive sales in the calculation of the fines imposed on the Decision’s other addressees thereby discriminating against Guardian; |
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set aside the Judgment in so far as the General Court upheld the Decision’s exclusion of captive sales in the calculation of the fines imposed on the Decision’s other addressees thereby discriminating against Guardian;

| — | accordingly reduce, in the exercise of its unlimited jurisdiction, the amount of the Decision’s fine imposed on the Appellants by an amount corresponding to 37 % of the fine; |
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accordingly reduce, in the exercise of its unlimited jurisdiction, the amount of the Decision’s fine imposed on the Appellants by an amount corresponding to 37 % of the fine;

| — | set aside the Judgment of the General Court of 27 September 2012 in Case T-82/08, Guardian Industries Corp. and Guardian Europe Sàrl v Commission, in so far as the General Court held the Commission’s letter of 10 February 2012 to be admissible; |
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set aside the Judgment of the General Court of 27 September 2012 in Case T-82/08, Guardian Industries Corp. and Guardian Europe Sàrl v Commission, in so far as the General Court held the Commission’s letter of 10 February 2012 to be admissible;

| — | accordingly, declare the Commission’s letter to be inadmissible and strike it from the record; |
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accordingly, declare the Commission’s letter to be inadmissible and strike it from the record;

| — | further reduce, in the exercise of its unlimited jurisdiction, the Decision’s fine imposed on the Appellants by an amount not inferior to 25 % of the original fine in order to remedy the General Court’s failure to grant effective judicial review within a reasonable time under Article 47 of the Charter; and |
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further reduce, in the exercise of its unlimited jurisdiction, the Decision’s fine imposed on the Appellants by an amount not inferior to 25 % of the original fine in order to remedy the General Court’s failure to grant effective judicial review within a reasonable time under Article 47 of the Charter; and

| — | order the Commission to pay the Appellants’ costs relating to this Appeal and the procedure before the General Court. |
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order the Commission to pay the Appellants’ costs relating to this Appeal and the procedure before the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

The appellants submit that the contested judgment should be set aside on the following grounds:

| | First, the Judgment breaches the principle of equal treatment by upholding the Decision’s exclusion of captive sales when calculating the fines imposed on the Decision’s other addressees and failing to rectify the resulting discrimination against Guardian. This ignored a consistent body of case-law requiring that captive sales be treated the same as external sales when calculating fines, lest this result in an unfair advantage to integrated producers. The General Court’s reasoning — that the Decision related only to ‘sales of flat glass to independent customers’ — cannot justify the discrimination against Guardian. |
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First, the Judgment breaches the principle of equal treatment by upholding the Decision’s exclusion of captive sales when calculating the fines imposed on the Decision’s other addressees and failing to rectify the resulting discrimination against Guardian. This ignored a consistent body of case-law requiring that captive sales be treated the same as external sales when calculating fines, lest this result in an unfair advantage to integrated producers. The General Court’s reasoning — that the Decision related only to ‘sales of flat glass to independent customers’ — cannot justify the discrimination against Guardian.

| | Second, the Judgment breaches the General Court’s rules on time limits and fundamental principles of rights of the defence and equality of arms by declaring admissible the Commission’s letter of 10 February 2012. In that letter, sent one working day before the hearing, the Commission purported to introduce into the record new information that was not already before the Court, even though the Commission had had many earlier opportunities to do so. |
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Second, the Judgment breaches the General Court’s rules on time limits and fundamental principles of rights of the defence and equality of arms by declaring admissible the Commission’s letter of 10 February 2012. In that letter, sent one working day before the hearing, the Commission purported to introduce into the record new information that was not already before the Court, even though the Commission had had many earlier opportunities to do so.

| | Third, more than three years and five months passed between the closure of the written procedure and the General Court’s decision to open the oral procedure. This delay infringed the Appellants’ right under Article 47 of the Charter to an effective remedy and hearing within a reasonable time. It exceeds what this Court has considered unreasonable in the past, and cannot be explained by any factors such as complexity or the volume of evidence before the General Court. On the contrary, this was a straightforward case with Guardian the only company to lodge an application to annul the Decision. The evidentiary record was limited to a handful of short documents and statements, all in the language of the procedure. Guardian did all it could to simplify and speed up the General Court’s handling of its appeal, including by foregoing a second round of written pleadings despite the importance of its appeal and — given the infringement’s extremely short duration — the unprecedented fine imposed by the Commission. |
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Third, more than three years and five months passed between the closure of the written procedure and the General Court’s decision to open the oral procedure. This delay infringed the Appellants’ right under Article 47 of the Charter to an effective remedy and hearing within a reasonable time. It exceeds what this Court has considered unreasonable in the past, and cannot be explained by any factors such as complexity or the volume of evidence before the General Court. On the contrary, this was a straightforward case with Guardian the only company to lodge an application to annul the Decision. The evidentiary record was limited to a handful of short documents and statements, all in the language of the procedure. Guardian did all it could to simplify and speed up the General Court’s handling of its appeal, including by foregoing a second round of written pleadings despite the importance of its appeal and — given the infringement’s extremely short duration — the unprecedented fine imposed by the Commission.

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