# C_2014045EN.01002001.xml

| 15.2.2014 | EN | Official Journal of the European Union | C 45/20 |
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15.2.2014

EN

Official Journal of the European Union

C 45/20

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Appeal brought on 28 November 2013 by Mamoli Robinetteria SpA against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Case T-376/10 Mamoli Robinetteria v Commission

(Case C-619/13 P)

2014/C 45/36

Language of the case: Italian

Parties

Parties

Appellant: Mamoli Robinetteria SpA (represented by: F. Capelli and M. Valcada, avvocati)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should:

| — | Uphold the present appeal and, varying the judgment delivered by the General Court on 16 September 2013 in Case T-376/10 Mamoli Robinetteria v Commission,






  — | annul Article 1 of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), in so far as it finds that Mamoli Robinetteria SpA infringed Article 101 TFEU and, consequently, annul Article 2 of that decision in so far as it imposes on Mamoli Robinetteria SpA a fine amounting to 10 % of the total turnover for 2009, subsequently reduced to EUR 1 041 531 on account of Mamoli’s particular situation; |
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Uphold the present appeal and, varying the judgment delivered by the General Court on 16 September 2013 in Case T-376/10 Mamoli Robinetteria v Commission,

Mamoli Robinetteria

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annul Article 1 of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), in so far as it finds that Mamoli Robinetteria SpA infringed Article 101 TFEU and, consequently, annul Article 2 of that decision in so far as it imposes on Mamoli Robinetteria SpA a fine amounting to 10 % of the total turnover for 2009, subsequently reduced to EUR 1 041 531 on account of Mamoli’s particular situation;

| — | On the substance, in the alternative:






  — | annul Article 2 of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), by recalculating the fine and reducing it to an amount equal to 0.3 % of the turnover of Mamoli Robinetteria for the year 2003 or, in any event, to such lesser amount, compared with the penalty imposed, as the Court may deem appropriate. |
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On the substance, in the alternative:

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annul Article 2 of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), by recalculating the fine and reducing it to an amount equal to 0.3 % of the turnover of Mamoli Robinetteria for the year 2003 or, in any event, to such lesser amount, compared with the penalty imposed, as the Court may deem appropriate.

Pleas in law and main arguments

Pleas in law and main arguments

The appellant puts forward seven grounds of appeal in support of its action.

| 1. | First ground of appeal. Infringement of the procedural principles governing the formulation of the pleas in law
  The appellant maintains that the General Court made a significant error in confusing the pleas in law with the arguments put forward in support of those pleas themselves. Such an error resulted in part of the appellant’s case being held to be inadmissible. |
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1.

First ground of appeal. Infringement of the procedural principles governing the formulation of the pleas in law

The appellant maintains that the General Court made a significant error in confusing the pleas in law with the arguments put forward in support of those pleas themselves. Such an error resulted in part of the appellant’s case being held to be inadmissible.

| 2. | Second ground of appeal. Infringement of the rights of the defence
  The appellant maintains that, prior to adoption of the decision, the other parties to the proceedings had the opportunity to put forward arguments in their defence in relation to circumstances not disclosed to Mamoli. The General Court did not properly evaluate this aspect. |
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2.

Second ground of appeal. Infringement of the rights of the defence

The appellant maintains that, prior to adoption of the decision, the other parties to the proceedings had the opportunity to put forward arguments in their defence in relation to circumstances not disclosed to Mamoli. The General Court did not properly evaluate this aspect.

| 3. | Third ground of appeal. Breach of the principle of legality in the adoption of the Leniency Notices, in the light of the infringement of Articles 101 to 105 TFEU taken together, and of Article 23 of Council Regulation No 1/2003 (1)

  The entire procedure originates in and is based on the Commission Notices which established what is known as the leniency programme. The appellant submits that, in the absence of an act of the European legislature, the Commission does not have any power to grant total or partial immunity for undertakings or, on the basis of the notice relating thereto, to initiate competition-law proceedings which result in the imposition of heavy penalties. The General Court did not provide an adequate response to the appellant’s objections inasmuch as it failed to give due consideration to the various points of law raised. |
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3.

Third ground of appeal. Breach of the principle of legality in the adoption of the Leniency Notices, in the light of the infringement of Articles 101 to 105 TFEU taken together, and of Article 23 of Council Regulation No 1/2003 (1)

1

The entire procedure originates in and is based on the Commission Notices which established what is known as the leniency programme. The appellant submits that, in the absence of an act of the European legislature, the Commission does not have any power to grant total or partial immunity for undertakings or, on the basis of the notice relating thereto, to initiate competition-law proceedings which result in the imposition of heavy penalties. The General Court did not provide an adequate response to the appellant’s objections inasmuch as it failed to give due consideration to the various points of law raised.

| 4. | Fourth ground of appeal. Infringement of Article 101 TFEU and of Article 2 of Regulation No 1/2003
  The appellant submits that the Commission made substantial errors in the course of its investigation. It maintains that the Commission disregarded the specific nature of the Italian market (for example, structure, characteristics, role of the wholesalers) and conflated the situation on the Italian market with that existing on the German market. That error invalidated the Commission’s conclusions regarding the existence on the Italian market of a price-fixing cartel. Furthermore, the appellant submits that the Commission, as a result of the errors complained of, failed to discharge the burden of proof incumbent upon it. No account at all was taken of the significance of Ideal Standard’s role on the Italian market. The General Court wholly disregarded the appellant’s complaints and arguments. |
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4.

Fourth ground of appeal. Infringement of Article 101 TFEU and of Article 2 of Regulation No 1/2003

The appellant submits that the Commission made substantial errors in the course of its investigation. It maintains that the Commission disregarded the specific nature of the Italian market (for example, structure, characteristics, role of the wholesalers) and conflated the situation on the Italian market with that existing on the German market. That error invalidated the Commission’s conclusions regarding the existence on the Italian market of a price-fixing cartel. Furthermore, the appellant submits that the Commission, as a result of the errors complained of, failed to discharge the burden of proof incumbent upon it. No account at all was taken of the significance of Ideal Standard’s role on the Italian market. The General Court wholly disregarded the appellant’s complaints and arguments.

| 5. | Fifth ground of appeal. Infringement of the principles of proportionality and equal treatment, and of the principle that penalties must be specific to the offender, in the imposition of the fine on Mamoli and in the determination of the amount of the fine
  The Commission, in imposing on the appellant the maximum penalty, infringed the principles mentioned above. The appellant maintains that its actual conduct was not correctly evaluated by the Commission, which decided on the amount of the fine without taking account of Mamoli’s conduct or of the actual impact of that conduct in the context of the infringement in issue. The Commission also erred in failing to recognise any mitigating circumstances with regard to Mamoli. Although the General Court accepted certain of Mamoli’s objections concerning the errors made by the Commission in the determination of the fine, it did not grant a reduction in the fine. |
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5.

Fifth ground of appeal. Infringement of the principles of proportionality and equal treatment, and of the principle that penalties must be specific to the offender, in the imposition of the fine on Mamoli and in the determination of the amount of the fine

The Commission, in imposing on the appellant the maximum penalty, infringed the principles mentioned above. The appellant maintains that its actual conduct was not correctly evaluated by the Commission, which decided on the amount of the fine without taking account of Mamoli’s conduct or of the actual impact of that conduct in the context of the infringement in issue. The Commission also erred in failing to recognise any mitigating circumstances with regard to Mamoli. Although the General Court accepted certain of Mamoli’s objections concerning the errors made by the Commission in the determination of the fine, it did not grant a reduction in the fine.

| 6. | Sixth ground of appeal. Infringement of Article 23 of Regulation No 1/2003 in conjunction with point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)
  The appellant maintains that, although the Commission understood that Mamoli was in fact in a critical economic situation which undermined the company’s ability to pay, it adopted a decision unsuitable for attaining the objective sought. The General Court failed to assess the arguments put forward by Mamoli. |
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6.

Sixth ground of appeal. Infringement of Article 23 of Regulation No 1/2003 in conjunction with point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2)

The appellant maintains that, although the Commission understood that Mamoli was in fact in a critical economic situation which undermined the company’s ability to pay, it adopted a decision unsuitable for attaining the objective sought. The General Court failed to assess the arguments put forward by Mamoli.

| 7. | Seventh ground of appeal. Infringement of procedural rules
  The General Court unlawfully refused to grant Mamoli’s applications for measures of inquiry. |
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7.

Seventh ground of appeal. Infringement of procedural rules

The General Court unlawfully refused to grant Mamoli’s applications for measures of inquiry.

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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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