# C_2009267EN.01007701.xml

| 7.11.2009 | EN | Official Journal of the European Union | C 267/77 |
| --- | --- | --- | --- |

7.11.2009

EN

Official Journal of the European Union

C 267/77

---

Action brought on 14 September 2009 — Novácke chemické závody/Commission

(Case T-352/09)

2009/C 267/138

Language of the case: English

Parties

Parties

Applicant: Novácke chemické závody, a.s. (Nováky, Slovak Republic) (represented by: A. Černejová, lawyer)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

Form of order sought

| — | Annul the contested decision with respect to the applicant and consequently cancel the fine imposed on the applicant; or |
| --- | --- |

—

Annul the contested decision with respect to the applicant and consequently cancel the fine imposed on the applicant; or

| — | in the alternative, cancel the fine imposed on the applicant in the Article 2 of the decision or at least significantly decrease the fine imposed on the applicant; and |
| --- | --- |

—

in the alternative, cancel the fine imposed on the applicant in the Article 2 of the decision or at least significantly decrease the fine imposed on the applicant; and

| — | order the Commission to pay the costs. |
| --- | --- |

—

order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment of Commission decision of 22 July 2009 (Case No COMP/F/39.396 — Calcium and magnesium reagents for the steel and gas industries) where the Commission found the applicant together with other undertakings liable for the infringement of Article 81 EC and Article 53 EEA through market sharing, quotas, customer allocation, price fixing and exchanges of sensitive commercial information between suppliers of calcium carbide and magnesium granulates. Alternatively, the applicant seeks the cancellation or reduction of the fine imposed on it pursuant to Article 31 of Council Regulation (EC) No 1/2003.

The application is based on the following grounds:

| | First, the applicant submits that the Commission has breached the principle of proportionality and equal treatment which are general principles of Community law, by imposing an excessive and disproportionate fine on the applicant. |
| --- | --- |

First, the applicant submits that the Commission has breached the principle of proportionality and equal treatment which are general principles of Community law, by imposing an excessive and disproportionate fine on the applicant.

| | Second, that applicant claims that the Commission failed to investigate the applicant’s ability to pay the fine and the risk that the fine may lead to its bankruptcy. The applicant submits, in particular, that the Commission failed to adhere to the essential procedural requirements, that it did not properly examine the evidence supplied by the applicant showing the imminent risk of a bankruptcy proceeding should the Commission impose a fine on it. Hence, it is submitted that the Commission committed a manifest error of appraisal in failure to establish the aforementioned risk and to apply paragraph 35 of the Guidelines in respect of the applicant. |
| --- | --- |

Second, that applicant claims that the Commission failed to investigate the applicant’s ability to pay the fine and the risk that the fine may lead to its bankruptcy. The applicant submits, in particular, that the Commission failed to adhere to the essential procedural requirements, that it did not properly examine the evidence supplied by the applicant showing the imminent risk of a bankruptcy proceeding should the Commission impose a fine on it. Hence, it is submitted that the Commission committed a manifest error of appraisal in failure to establish the aforementioned risk and to apply paragraph 35 of the Guidelines in respect of the applicant.

| | Third, the applicant contends that the imposition of the fine on the applicant will directly cause its bankruptcy as well as its elimination as a competitor on the relevant market. Thus, according to the applicant, the Commission has violated Article 3(1)(g) EC by distorting or eliminating competition on the relevant market. |
| --- | --- |

Third, the applicant contends that the imposition of the fine on the applicant will directly cause its bankruptcy as well as its elimination as a competitor on the relevant market. Thus, according to the applicant, the Commission has violated Article 3(1)(g) EC by distorting or eliminating competition on the relevant market.

---