# C_2005082EN.01003001.xml

| 2.4.2005 | EN | Official Journal of the European Union | C 82/30 |
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2.4.2005

EN

Official Journal of the European Union

C 82/30

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Action brought on 23 December 2004 by Jungbunzlauer AG and three others against the Commission of the European Communities

(Case T-492/04)

(2005/C 82/58)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 December 2004 by Jungbunzlauer AG, Basel (Switzerland), Jungbunzlauer Ladenburg GmbH, Ladenburg (Germany), Jungbunzlauer Holding AG, Chur (Switzerland) and Jungbunzlauer Austria AG, Vienna, represented by R. Bechtold, M. Karl, U. Soltész and C. Steinle, lawyers.

The applicants claim that the Court should:

| 1. | annul in its entirety the Commission's decision of 29 September 2004 (Case COMP/E-1/36.756 – Sodium gluconate);
  alternatively, annul the decision in regard to individual addressees,
  alternatively, reduce the fine imposed in the decision; |
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1.

annul in its entirety the Commission's decision of 29 September 2004 (Case COMP/E-1/36.756 – Sodium gluconate);

alternatively, annul the decision in regard to individual addressees,

alternatively, reduce the fine imposed in the decision;

| 2. | order the Commission to pay the applicants' costs; |
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2.

order the Commission to pay the applicants' costs;

| 3. | obtain and refer to the documents in case T-312/01 and adopt any other procedural measures which the Court considers appropriate. |
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3.

obtain and refer to the documents in case T-312/01 and adopt any other procedural measures which the Court considers appropriate.

Pleas in law and main arguments

By the contested decision, the Commission found that the applicants had participated in a continuous agreement and/or concerted practice in the sodium gluconate sector and had thereby infringed Article 81(1) EC and Article 53 of the EEA Agreement. As a result, fines were imposed on those undertakings.

The applicants are contesting that decision and submit that it was only Jungbunzlauer Ladenburg GmbH which was responsible for the infringement. Jungbunzlauer Austria AG and Jungbunzlauer AG did not at any time participate in the infringement and had no influence on the market behaviour or company policies of Jungbunzlauer Ladenburg GmbH. Nor, in the applicants' submission, were they liable by virtue of their association with Jungbunzlauer Ladenburg GmbH from the point of view of company law, or by virtue of their membership of the Jungbunzlauer group. Jungbunzlauer Holding AG was merely a holding company without any decisive influence on the production volume and pricing policies and thereby on the behaviour of Jungbunzlauer Ladenburg GmbH in the sodium gluconate market.

Even if Jungbunzlauer Austria AG, Jungbunzlauer AG and Jungbunzlauer Holding AG had been responsible for the infringement, which, according to the applicants, is not the case, the Commission's power to impose fines on those companies had already been lost through lapse of time.

Furthermore, the applicants claim that, in so far as the decision is addressed to Jungbunzlauer Ladenburg AG, it is defective in form and substance, because the Commission was in breach of a number of rules and principles. Among other, the Commission infringed the principles of presumed innocence and good administration by carrying out a second administrative procedure while the court proceedings relating to a decision of 2 October 2001 concerning the same cartel were still pending. By its ‘second’ decision of 29 September 2004, the Commission also infringed the principle of legitimate expectation and the principle of ne bis indem. Moreover, the length of the proceedings was unreasonable.

With regard to the fine imposed, the applicants assert, among other, that the fine is disproportionately high and exceeds the upper limit of fines, that the Commission is mistaken in its assumption of duration, that Jungbunzlauer Ladenburg GmbH is not the ringleader and that there are extenuating circumstances due to the excessive length of the proceedings.

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