# C_2017168EN.01002002.xml

| 29.5.2017 | EN | Official Journal of the European Union | C 168/20 |
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29.5.2017

EN

Official Journal of the European Union

C 168/20

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Appeal brought on 24 February 2017 by Infineon Technologies AG against the judgment of the General Court (Fifth Chamber) delivered on 15 December 2016 in Case T-758/14: Infineon Technologies AG v European Commission

(Case C-99/17 P)

(2017/C 168/27)

Language of the case: English

Parties

Parties

Appellant: Infineon Technologies AG (represented by: M. Klusmann, Rechtsanwalt, T. Lübbig, Rechtsanwalt)

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:

| — | set aside the judgment of the General Court (Fifth Chamber) of 15 December 2016, Case T-758/14; |
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set aside the judgment of the General Court (Fifth Chamber) of 15 December 2016, Case T-758/14;

| — | annul the Decision of the European Commission No. C(2014) 6250 final of 3 September 2014 (Case AT.39574 — Smart Card Chips) in so far as Infineon Technologies AG is concerned; |
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annul the Decision of the European Commission No. C(2014) 6250 final of 3 September 2014 (Case AT.39574 — Smart Card Chips) in so far as Infineon Technologies AG is concerned;

| — | in eventu, reduce the fine in the amount of EUR 82 874 000imposed on the Appellant according to paragraph 457 (a) of the Commission’s Decision of 3 September 2014, to a proportionate amount; |
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in eventu, reduce the fine in the amount of EUR 82 874 000imposed on the Appellant according to paragraph 457 (a) of the Commission’s Decision of 3 September 2014, to a proportionate amount;

| — | in eventu, refer the case back to the General Court for reconsideration; |
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in eventu, refer the case back to the General Court for reconsideration;

| — | order the Defendant to pay the costs. |
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order the Defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In essence the Appellant submits that:

| — | the General Court failed to have regard to its obligation to carry out a sufficient review of the contested Decision, as provided for in Article 263 TFEU, in particular due to the General Court in the present case having adopted an erroneous approach of an incomplete selective judicial review. Despite all of the contacts at issue in the Decision having been contested by the Appellant, the General Court only reviewed less than half of these contacts, without providing sufficient reasoning as to the selection of particular contacts to be reviewed or not to be reviewed and without any legal basis for doing so; |
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the General Court failed to have regard to its obligation to carry out a sufficient review of the contested Decision, as provided for in Article 263 TFEU, in particular due to the General Court in the present case having adopted an erroneous approach of an incomplete selective judicial review. Despite all of the contacts at issue in the Decision having been contested by the Appellant, the General Court only reviewed less than half of these contacts, without providing sufficient reasoning as to the selection of particular contacts to be reviewed or not to be reviewed and without any legal basis for doing so;

| — | the Commission and the General Court, respectively, erred in law in respect of the application of Article 101 TFEU, in particular due to the finding of an ‘overall’ restriction of competition by object on the part of the Appellant, mainly through an exchange on general market trends and forecasts on pricing developments. Moreover, the Commission and General Court failed to have regard to the conditions for establishing a single and continuous infringement, as applied by the Court in its case-law; |
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the Commission and the General Court, respectively, erred in law in respect of the application of Article 101 TFEU, in particular due to the finding of an ‘overall’ restriction of competition by object on the part of the Appellant, mainly through an exchange on general market trends and forecasts on pricing developments. Moreover, the Commission and General Court failed to have regard to the conditions for establishing a single and continuous infringement, as applied by the Court in its case-law;

| — | the Commission and the General Court, respectively, erred in law in respect of the calculation of the fine imposed on the Appellant. In particular, the General Court failed to consider the effects arising from its own incomplete selective review (with only a few of the contested contacts at issue being verified) and, consequently, failed to have regard to its unlimited jurisdiction with regard to the fine imposed. The General Court moreover erred in — and failed to sufficiently state reasons for — including the non-SIM revenues of the Appellant which led to the fine being excessive and thus disproportionate.
  Further arguments relate to several distortions of evidence by the General Court, an erroneous allocation of the burden of proof regarding potentially unreliable evidence and errors of law relating to evidence used by the Commission against the Appellant which was not disclosed throughout the Commission proceedings. |
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the Commission and the General Court, respectively, erred in law in respect of the calculation of the fine imposed on the Appellant. In particular, the General Court failed to consider the effects arising from its own incomplete selective review (with only a few of the contested contacts at issue being verified) and, consequently, failed to have regard to its unlimited jurisdiction with regard to the fine imposed. The General Court moreover erred in — and failed to sufficiently state reasons for — including the non-SIM revenues of the Appellant which led to the fine being excessive and thus disproportionate.

Further arguments relate to several distortions of evidence by the General Court, an erroneous allocation of the burden of proof regarding potentially unreliable evidence and errors of law relating to evidence used by the Commission against the Appellant which was not disclosed throughout the Commission proceedings.

| — | In the alternative, the Judgment is vitiated by a breach of the principle of proportionality, in particular in so far as the General Court failed to grant to the Appellant a sufficient fine reduction due to its limited participation in the infringement at issue, an insufficient consideration of mitigating factors and in terms of the absolute amount of the fine imposed on the Appellant being disproportionate. |
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In the alternative, the Judgment is vitiated by a breach of the principle of proportionality, in particular in so far as the General Court failed to grant to the Appellant a sufficient fine reduction due to its limited participation in the infringement at issue, an insufficient consideration of mitigating factors and in terms of the absolute amount of the fine imposed on the Appellant being disproportionate.

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