# C_2013055EN.01000401.xml

| 23.2.2013 | EN | Official Journal of the European Union | C 55/4 |
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23.2.2013

EN

Official Journal of the European Union

C 55/4

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Appeal brought on 11 December 2012 by Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV against the judgment of the General Court (Sixth Chamber) delivered on 27 September 2012 in Case T-370/06: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV v European Commission

(Case C-581/12 P)

2013/C 55/06

Language of the case: English

Parties

Parties

Appellants: Kuwait Petroleum Corp., Kuwait Petroleum International Ltd, Kuwait Petroleum (Nederland) BV (represented by: D.W. Hull, Solicitor, G. Berrisch, Rechtsanwalt)

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 Contested Judgment; |
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set aside the Contested Judgment;

| — | to either (i) annul Article 2(i) of the Contested Decision (1) insofar as it imposes a fine on the Appellants; (ii) reduce the amount of the fine imposed on the Appellants, or (iii) refer the case back to the General Court; and |
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to either (i) annul Article 2(i) of the Contested Decision (1) insofar as it imposes a fine on the Appellants; (ii) reduce the amount of the fine imposed on the Appellants, or (iii) refer the case back to the General Court; and

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| — | order the Commission to pay the costs of the appeal and of the proceedings before the General Court. |
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order the Commission to pay the costs of the appeal and of the proceedings before the General Court.

Pleas in law and main arguments

Pleas in law and main arguments

By a judgment dated 27 September 2012 (the ‘Contested Judgment’), the General Court upheld a Commission decision adopted on 13 September 2006 imposing on Kuwait Petroleum Corporation (‘KPC’), Kuwait Petroleum International Limited (‘KPI’), and Kuwait Petroleum (Nederland) BV (‘KPN’) (KPC, KPI, and KPN will be referred to collectively as the ‘Appellants’), jointly and severally, a fine of EUR 16 632 million for infringing Article 81 EC by fixing prices in the Dutch bitumen market. Each of the Appellants hereby seeks either the annulment of the Contested Judgment insofar as it imposes a fine, reduction of the fine, or referral back to the General Court on the following grounds:

| 1. | The Contested Judgment should be annulled insofar as it imposes a fine or, in the alternative, referred back to the General Court, because the Contested Judgment is vitiated by an error of law in that the General Court misinterpreted the last paragraph of Point 23(b) of the 2002 Leniency Notice, which provides that, when a leniency applicant ‘provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel,’ the Commission may not take those facts into account when setting the fine on the leniency applicant. The General Court ruled that a fact is ‘unknown’ to the Commission only if the Commission has no knowledge whatsoever of a fact. Thus, even if the Commission only has a very general idea about the existence of a cartel and no direct evidence that will allow it to prove the facts relating to the cartel, a leniency applicant that provides such evidence will not be able to benefit from the immunity provided for in the last paragraph of Point 23(b). The Appellants submit that this interpretation of this paragraph is too narrow and wrong as a matter of law. |
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The Contested Judgment should be annulled insofar as it imposes a fine or, in the alternative, referred back to the General Court, because the Contested Judgment is vitiated by an error of law in that the General Court misinterpreted the last paragraph of Point 23(b) of the 2002 Leniency Notice, which provides that, when a leniency applicant ‘provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel,’ the Commission may not take those facts into account when setting the fine on the leniency applicant. The General Court ruled that a fact is ‘unknown’ to the Commission only if the Commission has no knowledge whatsoever of a fact. Thus, even if the Commission only has a very general idea about the existence of a cartel and no direct evidence that will allow it to prove the facts relating to the cartel, a leniency applicant that provides such evidence will not be able to benefit from the immunity provided for in the last paragraph of Point 23(b). The Appellants submit that this interpretation of this paragraph is too narrow and wrong as a matter of law.

| 2. | The Contested Judgment is vitiated by an error of law in that the General Court failed to properly consider the evidence put forward by the Appellants before concluding that the value of the evidence submitted to the Commission by KPN in the context of its leniency application was diluted by intervening submissions of other parties. The General Court could not have arrived at this conclusion without examining the evidence submitted by KPN and comparing it to the evidence submitted by the other parties, which it did not even attempt to do. |
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2.

The Contested Judgment is vitiated by an error of law in that the General Court failed to properly consider the evidence put forward by the Appellants before concluding that the value of the evidence submitted to the Commission by KPN in the context of its leniency application was diluted by intervening submissions of other parties. The General Court could not have arrived at this conclusion without examining the evidence submitted by KPN and comparing it to the evidence submitted by the other parties, which it did not even attempt to do.

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(1)  Decision C(2006) 4090 final relationg to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands), OJ (2007) L196/40

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