# C_2004273EN.01002401.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/24 |
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6.11.2004

EN

Official Journal of the European Union

C 273/24

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Appeal brought on 23 September 2004 by Mannesmannröhren-Werke AG against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities

(Case C-411/04 P)

(2004/C 273/45)

An appeal against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-44/00 between Mannesmannröhren-Werke AG and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 23 September 2004 by Mannesmannröhren-Werke AG, represented by Dr. Martin Klusmann und Dr. Frederik Wiemer, Anwälte, of Freshfields Bruckhaus Deringer, Freiligrathstraße 1, D-40479 Düsseldorf.

The appellant claims that the Court should

| 1. | Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in Case T-44/00 Mannesmannröhren-Werke AG v Commission of the European Communities, (1) and grant the form of order sought by the applicant in that case, in so far as in that judgment the Court of First Instance dismissed the action for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC. |
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1.

Set aside the judgment of the Court of First Instance of the European Communities of 8 July 2004 in Case T-44/00 Mannesmannröhren-Werke AG v Commission of the European Communities, (1) and grant the form of order sought by the applicant in that case, in so far as in that judgment the Court of First Instance dismissed the action for annulment of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 EC.

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| 2. | Annul Commission Decision 2003/382/EC of 8 December 1999 in its entirety. |
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2.

Annul Commission Decision 2003/382/EC of 8 December 1999 in its entirety.

| 3. | In the alternative, reduce as appropriate the level of the fine imposed on the applicant in Article 4 of Decision 2003/382/EC as well as the interest payable during the related legal proceedings and the default interest specified in Article 5 of Decision 2003/382/EC. |
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3.

In the alternative, reduce as appropriate the level of the fine imposed on the applicant in Article 4 of Decision 2003/382/EC as well as the interest payable during the related legal proceedings and the default interest specified in Article 5 of Decision 2003/382/EC.

| 4. | In the further alternative, refer the dispute back to the Court of First Instance of the European Communities for a fresh judgment in accordance with the legal interpretation of the Court of Justice. |
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4.

In the further alternative, refer the dispute back to the Court of First Instance of the European Communities for a fresh judgment in accordance with the legal interpretation of the Court of Justice.

| 5. | Order the defendant to pay the entire costs of the proceedings. |
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5.

Order the defendant to pay the entire costs of the proceedings.

Pleas in law and main arguments:

The appellant raises three pleas in law in support of its appeal for more extensive annulment of the decision:

| 1. | The Court of First Instance offended against the legal principle of fairness in judicial proceedings because it made an error of law in finding that the crucial ‘sharing-key document’ was admissible as inculpatory evidence despite the fact that its authorship, origin and the circumstances in which it was obtained are not known to the applicant at first instance. The applicant would only have been able to defend itself appropriately against the incriminating sharing-key document if it had been in a position not only to make submissions in relation to the content of that document but also in relation to its credibility. |
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1.

The Court of First Instance offended against the legal principle of fairness in judicial proceedings because it made an error of law in finding that the crucial ‘sharing-key document’ was admissible as inculpatory evidence despite the fact that its authorship, origin and the circumstances in which it was obtained are not known to the applicant at first instance. The applicant would only have been able to defend itself appropriately against the incriminating sharing-key document if it had been in a position not only to make submissions in relation to the content of that document but also in relation to its credibility.

| 2. | The Court of First Instance incorrectly confirmed the infringement of competition law alleged in Article 2 of the contested decision. The defendant did not establish that by concluding the supply contract with Corus in 1993 the applicant reached or implemented a horizontal agreement with Vallourec und Dalmine. No account was taken of the fact that the contract was a non-exclusive supply contract concluded more than two years after other contracts. |
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2.

The Court of First Instance incorrectly confirmed the infringement of competition law alleged in Article 2 of the contested decision. The defendant did not establish that by concluding the supply contract with Corus in 1993 the applicant reached or implemented a horizontal agreement with Vallourec und Dalmine. No account was taken of the fact that the contract was a non-exclusive supply contract concluded more than two years after other contracts.

| 3. | The Court of First Instance infringed the principle of equal treatment in so far as it did not grant the applicant, in contrast to Vallourec and Dalmine, a reduction in its fine for cooperating in the investigation in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4). By way of the ‘Becher’ declarations, the applicant made its own contribution to clarifying the facts of the case, which was also acknowledged in the contested decision. Moreover, the applicant did not contest the facts found in the statement of objections. However, the court also failed to take this into account in considering whether the fine should be reduced. |
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3.

The Court of First Instance infringed the principle of equal treatment in so far as it did not grant the applicant, in contrast to Vallourec and Dalmine, a reduction in its fine for cooperating in the investigation in accordance with the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4). By way of the ‘Becher’ declarations, the applicant made its own contribution to clarifying the facts of the case, which was also acknowledged in the contested decision. Moreover, the applicant did not contest the facts found in the statement of objections. However, the court also failed to take this into account in considering whether the fine should be reduced.

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(1)  OJ C 239 of 25.12.2004.

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