# C_2004300EN.01002501.xml

| 4.12.2004 | EN | Official Journal of the European Union | C 300/25 |
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4.12.2004

EN

Official Journal of the European Union

C 300/25

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Appeal brought on 24 September 2004 (fax of 16 September 2004) by Dalmine SpA 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-50/00 between Dalmine SpA and the Commission of the European Communities

(Case C-407/04 P)

(2004/C 300/51)

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-50/00 Dalmine SpA v Commission of the European Communities was brought before the Court of Justice of the European Communities on 24 September 2004 by Dalmine SpA, represented by A. Sinagra, M. Siragusa and F.M. Moretti, lawyers.

The appellant claims that the Court should:

| — | annul the contested judgment of the Court of First Instance together with the decision originally contested; or |
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annul the contested judgment of the Court of First Instance together with the decision originally contested; or

| — | annul the contested judgment and, consequently, the parts of the Commission decision covered by such pleas put forward in the present notice of appeal as the Court may find to be acceptable and well founded; |
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annul the contested judgment and, consequently, the parts of the Commission decision covered by such pleas put forward in the present notice of appeal as the Court may find to be acceptable and well founded;

| — | in the alternative, annul Article 4 of the decision and substantially reduce the fine imposed, taking account of the grounds and facts put forward in the present notice of appeal, whether as a consequence of the errors of law committed by the Court of First Instance in assessing the appropriateness of the penalty, or as a consequence of the annulment, in whole or in part, of the judgment, with particular (but not exclusive) regard to the findings of the Court of First Instance in relation to the infringements found in Articles 1 and 2 of the decision; |
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in the alternative, annul Article 4 of the decision and substantially reduce the fine imposed, taking account of the grounds and facts put forward in the present notice of appeal, whether as a consequence of the errors of law committed by the Court of First Instance in assessing the appropriateness of the penalty, or as a consequence of the annulment, in whole or in part, of the judgment, with particular (but not exclusive) regard to the findings of the Court of First Instance in relation to the infringements found in Articles 1 and 2 of the decision;

| — | assess whether, for various reasons and pursuant to its autonomous jurisdiction, it should refer the case back to the Court of First Instance for reconsideration and a new judgment which should take account of the Court of Justice's interpretation of the legislation and of the principles of law in the present case; |
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assess whether, for various reasons and pursuant to its autonomous jurisdiction, it should refer the case back to the Court of First Instance for reconsideration and a new judgment which should take account of the Court of Justice's interpretation of the legislation and of the principles of law in the present case;

| — | lastly, in any event, set aside the order as to costs in the judgment of the Court of First Instance and order the Commission to pay Dalmine's costs at first instance and those of the appeal. |
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lastly, in any event, set aside the order as to costs in the judgment of the Court of First Instance and order the Commission to pay Dalmine's costs at first instance and those of the appeal.

Pleas in law and main arguments:

The appellant submits that the judgment of the Court of First Instance is flawed for:

| — | infringement and misapplication of Community law, and infringement of the rights of the defence, in finding that the questions which the Commission put to the applicant, in particular by the decision requesting information under Article 11(5) of Regulation No 17/62 (1), were lawful; |
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infringement and misapplication of Community law, and infringement of the rights of the defence, in finding that the questions which the Commission put to the applicant, in particular by the decision requesting information under Article 11(5) of Regulation No 17/62 (1), were lawful;

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| — | infringement and misapplication of Community law and infringement of the rights of the defence in finding that the ‘Sharing Key’ document was admissible and of evidential value; |
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infringement and misapplication of Community law and infringement of the rights of the defence in finding that the ‘Sharing Key’ document was admissible and of evidential value;

| — | infringement and misapplication of Community law and infringement of the rights of the defence in finding that the minutes of the interview with the former director of Dalmine were admissible and of evidential value; |
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infringement and misapplication of Community law and infringement of the rights of the defence in finding that the minutes of the interview with the former director of Dalmine were admissible and of evidential value;

| — | infringement of Article 81 EC as regards the legitimacy of the inclusion in the decision of extraneous grounds in the complaints made against the undertakings; |
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infringement of Article 81 EC as regards the legitimacy of the inclusion in the decision of extraneous grounds in the complaints made against the undertakings;

| — | infringement of Article 81 EC, misapplication of the law, distortion of the evidence and breach of the duty to state reasons in respect of the determination of the object of the alleged infringement under Article 1 of the decision, the assessment of its implementation, the determination of its effects and the fact of treating a potential, unimplemented infringement, or one without any appreciable effect on competition, in the same way as fully implemented infringements which have an unlawful object and effect; |
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infringement of Article 81 EC, misapplication of the law, distortion of the evidence and breach of the duty to state reasons in respect of the determination of the object of the alleged infringement under Article 1 of the decision, the assessment of its implementation, the determination of its effects and the fact of treating a potential, unimplemented infringement, or one without any appreciable effect on competition, in the same way as fully implemented infringements which have an unlawful object and effect;

| — | infringement of Article 81 EC, misapplication of the law, distortion of the evidence and breach of the duty to state reasons in respect of the alleged effect on trade between Member States; |
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infringement of Article 81 EC, misapplication of the law, distortion of the evidence and breach of the duty to state reasons in respect of the alleged effect on trade between Member States;

| — | action taken ultra vires, infringement of Community law and distortion of the facts and of the evidence as regards the Court of First Instance's reconstruction of the infringement found by the Commission in Article 2 of the decision; |
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action taken ultra vires, infringement of Community law and distortion of the facts and of the evidence as regards the Court of First Instance's reconstruction of the infringement found by the Commission in Article 2 of the decision;

| — | action taken ultra vires, infringement of Community law and distortion of the facts and of the evidence as regards the finding of the unlawfulness of the objects and/or the effects of the supply contract between Dalmine and British Steel, in so far as it restricted competition on the market for plain end and threaded pipes; |
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action taken ultra vires, infringement of Community law and distortion of the facts and of the evidence as regards the finding of the unlawfulness of the objects and/or the effects of the supply contract between Dalmine and British Steel, in so far as it restricted competition on the market for plain end and threaded pipes;

| — | infringement of Community law and distortion of the facts and of the evidence in so far as the terms of the supply contract between Dalmine and British Steel were found to be unlawful; |
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infringement of Community law and distortion of the facts and of the evidence in so far as the terms of the supply contract between Dalmine and British Steel were found to be unlawful;

| — | in the alternative, infringement of Article 81 EC and breach of the duty to state reasons in the assessment of the Commission's compliance with Article 15 of Regulation No 17/62 and of the Guidelines on the method of setting fines, as regards the gravity of the infringement said to be committed by Dalmine; |
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in the alternative, infringement of Article 81 EC and breach of the duty to state reasons in the assessment of the Commission's compliance with Article 15 of Regulation No 17/62 and of the Guidelines on the method of setting fines, as regards the gravity of the infringement said to be committed by Dalmine;

| — | and, lastly, again in the alternative, infringement of Article 81 EC and breach of the duty to state reasons in the assessment of the Commission's compliance with Article 15 of Regulation No 17/62 and with the Guidelines on the method of setting fines, as regards the assessment of the duration of the infringement alleged to have been committed by Dalmine and of the attenuating circumstances. |
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and, lastly, again in the alternative, infringement of Article 81 EC and breach of the duty to state reasons in the assessment of the Commission's compliance with Article 15 of Regulation No 17/62 and with the Guidelines on the method of setting fines, as regards the assessment of the duration of the infringement alleged to have been committed by Dalmine and of the attenuating circumstances.

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(1)  OJ, English Special Edition, Series I, Chapter 1959-1962, p. 87.

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