# C_2018427EN.01002502.xml

| 26.11.2018 | EN | Official Journal of the European Union | C 427/25 |
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26.11.2018

EN

Official Journal of the European Union

C 427/25

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Appeal brought on 24 September 2018 by Prysmian SpA, Prysmian Cavi e Sistemi Srl against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-475/14: Prysmian and Prysmian Cavi e Sistemi v Commission

(Case C-601/18 P)

(2018/C 427/34)

Language of the case: English

Parties

Appellants: Prysmian SpA, Prysmian Cavi e Sistemi Srl (represented by: C. Tesauro, F. Russo, L. Armati, avvocati)

Other parties to the proceedings: European Commission, The Goldman Sachs Group, Inc., Pirelli & C. SpA

Form of order sought

The appellants claim that the Court should:

| — | set aside the judgment under appeal; |
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set aside the judgment under appeal;

| — | grant the forms of order sought at first instance; |
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grant the forms of order sought at first instance;

| — | order the Commission to bear the costs. |
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order the Commission to bear the costs.

In the alternative the appellants respectfully request that the Court:

| — | refer the case back to the General Court; |
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refer the case back to the General Court;

| — | reserve the costs of the proceedings at first instance and on appeal. |
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reserve the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

| 1. | The General Court erred in finding that Article 20 of Regulation No. 1/2003 (1) does not prevent the Commission from taking the forensic images of entire hard drives of its employees without having examined their contents and from continuing their review at the Commission Brussels premises. The correct interpretation of the provision is that inspections can only be conducted at the undertaking’s premises and the Commission can only take copies of records of which it has examined the relevance. Given its interference with fundamental rights of the companies and their employees, a practice such as the taking of forensic images of entire hard drives should not be relegated to an explanatory note that grants full discretion to the Commission but should be governed by the law, in accordance with the principle of legality. |
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1.

The General Court erred in finding that Article 20 of Regulation No. 1/2003 (1) does not prevent the Commission from taking the forensic images of entire hard drives of its employees without having examined their contents and from continuing their review at the Commission Brussels premises. The correct interpretation of the provision is that inspections can only be conducted at the undertaking’s premises and the Commission can only take copies of records of which it has examined the relevance. Given its interference with fundamental rights of the companies and their employees, a practice such as the taking of forensic images of entire hard drives should not be relegated to an explanatory note that grants full discretion to the Commission but should be governed by the law, in accordance with the principle of legality.

| 2. | The General Court committed a breach of the principle of personal liability, legal certainty and the principle of equal treatment, in addition to infringing its duty to state reasons, by failing to consider that the attribution of liability to Prysmian Cavi e Sistemi based on economic continuity is an exception to the rule whereby liability follows the legal person managing the undertaking at the time of the infringement. As all exceptions, it is subject to strict application and can only be justified where the effectiveness of competition rules is at risk. Moreover, the General Court erred in ruling out discrimination in the present case on the grounds that there cannot be equality in illegality, as the attribution of liability based on economic continuity is a faculty granted to the Commission. |
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2.

The General Court committed a breach of the principle of personal liability, legal certainty and the principle of equal treatment, in addition to infringing its duty to state reasons, by failing to consider that the attribution of liability to Prysmian Cavi e Sistemi based on economic continuity is an exception to the rule whereby liability follows the legal person managing the undertaking at the time of the infringement. As all exceptions, it is subject to strict application and can only be justified where the effectiveness of competition rules is at risk. Moreover, the General Court erred in ruling out discrimination in the present case on the grounds that there cannot be equality in illegality, as the attribution of liability based on economic continuity is a faculty granted to the Commission.

| 3. | The General Court fails to address the Company’s main submission in the first instance that, any ‘home territory’ principle, assuming it existed — quod non -, could not credibly apply to all the disparate instances referred to in the decision and proving to the required legal standard the single and continuous infringement. |
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3.

The General Court fails to address the Company’s main submission in the first instance that, any ‘home territory’ principle, assuming it existed — quod non -, could not credibly apply to all the disparate instances referred to in the decision and proving to the required legal standard the single and continuous infringement.

| 4. | The General Court acted ultra petita and breached the Company’s rights of defence under Article 48 of the Charter of Fundamental Rights of the European Union and Article 6 ECHR in its examination of the appellants’ seventh plea in first instance, relating to the start date of the cartel. The General Court manifestly misunderstood the evidence before it and applied an incorrect legal standard in its examination. Such a manifest distortion of the evidence resulted in it drawing erroneous inferences and reaching the mistaken legal conclusion that, on 18 February 1999, the Commission could establish the start date of an infringement affecting trade between Member States under Article 101 TFEU. |
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4.

The General Court acted ultra petita and breached the Company’s rights of defence under Article 48 of the Charter of Fundamental Rights of the European Union and Article 6 ECHR in its examination of the appellants’ seventh plea in first instance, relating to the start date of the cartel. The General Court manifestly misunderstood the evidence before it and applied an incorrect legal standard in its examination. Such a manifest distortion of the evidence resulted in it drawing erroneous inferences and reaching the mistaken legal conclusion that, on 18 February 1999, the Commission could establish the start date of an infringement affecting trade between Member States under Article 101 TFEU.

| 5. | The General Court breached the principle of equal treatment in as far as it validated the assessment of the Commission that the allocation of projects among European producers in the context of the ‘European only — (R)’ configuration warranted a 2 % increase in the gravity factor (and, consequently, the ‘entry fee’) for the European manufacturers, whereas no such increase was applied to the Asian producers. It is not possible, on the one hand, to accept that the Commission Decision could find a single and continuous infringement based on a home territory rule consisting of interdependent configurations, and at the same time accept that the active involvement in one or the other justifies a different degree of gravity for the participants. Even if Asian producers were not actively involved in the alleged European allocation, they contributed to that allocation on a comparable degree as European producers. |
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5.

The General Court breached the principle of equal treatment in as far as it validated the assessment of the Commission that the allocation of projects among European producers in the context of the ‘European only — (R)’ configuration warranted a 2 % increase in the gravity factor (and, consequently, the ‘entry fee’) for the European manufacturers, whereas no such increase was applied to the Asian producers. It is not possible, on the one hand, to accept that the Commission Decision could find a single and continuous infringement based on a home territory rule consisting of interdependent configurations, and at the same time accept that the active involvement in one or the other justifies a different degree of gravity for the participants. Even if Asian producers were not actively involved in the alleged European allocation, they contributed to that allocation on a comparable degree as European producers.

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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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