# C_2009256EN.01000301.xml

| 24.10.2009 | EN | Official Journal of the European Union | C 256/3 |
| --- | --- | --- | --- |

24.10.2009

EN

Official Journal of the European Union

C 256/3

---

Judgment of the Court (Third Chamber) of 3 September 2009 — Papierfabrik August Koehler AG, Bolloré SA, Distribuidora Vizcaína de Papeles SL v Commission of the European Communities

(Joined Cases C-322/07 P, C-327/07 P and C-338/07 P) (1)

1

(Appeals - Agreements, decisions and concerted practices - Carbonless paper - Inconsistency between the statement of objections and the contested decision - Infringement of the rights of the defence - Consequences - Distortion of the clear sense of the evidence - Participation in the infringement - Duration of the infringement - Regulation No 17 - Article 15(2) - Guidelines on the method of setting fines - Principle of equal treatment - Principle of proportionality - Obligation to state the reasons on which the decision is based - Reasonable period for duration of proceedings before the Court of First Instance)

2009/C 256/04

Languages of the case: German, French and Spanish

Parties

Parties

Appellants: Papierfabrik August Koehler AG (represented by: I. Brinker and S. Hirsbrunner, Rechtsanwälte, J. Schwarze, professeur), Bolloré SA (represented by: C. Momège and P. Gassenbach, avocats), Distribuidora Vizcaína de Papeles SL (represented by: E. Pérez Medrano and T. Díaz Utrilla, abogados)

Appellants:

Other party to the proceedings: Commission of the European Communities (represented by: W. Mölls and F. Castillo de la Torre, acting as Agents, H.-J. Freund, Rechtsanwalt, N. Coutrelis, avocat)

Other party to the proceedings:

Re:

Re:

Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 in Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission — Price fixing agreement in the carbonless paper sector — Infringement of rights of defence in respect of the proof that the appellant participated in the infringement committed prior to October 1993 (erroneous, insufficient and contradictory proof) — Infringement of the principles of equal treatment and proportionality in respect of the setting of the amount of the fine (since the appellant is a family business which does not have access to capital markets)

Bolloré and Others

Commission

Operative part of the judgment

Operative part of the judgment

The Court:

| 1. | Sets aside the judgment of the Court of First Instance of the European Communities of 26 April 2007 in Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission in so far as it concerns Bolloré SA. |
| --- | --- |

1.

Sets aside the judgment of the Court of First Instance of the European Communities of 26 April 2007 in Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission in so far as it concerns Bolloré SA.

| 2. | Annuls Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) in so far as it relates to Bolloré SA. |
| --- | --- |

2.

Annuls Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) in so far as it relates to Bolloré SA.

| 3. | Dismisses the appeals brought by Papierfabrik August Koehler AG and Distribuidora Vizcaína de Papeles SL. |
| --- | --- |

3.

Dismisses the appeals brought by Papierfabrik August Koehler AG and Distribuidora Vizcaína de Papeles SL.

| 4. | Orders the Commission of the European Communities to pay the costs at first instance and on appeal in Case C-327/07 P. |
| --- | --- |

4.

Orders the Commission of the European Communities to pay the costs at first instance and on appeal in Case C-327/07 P.

| 5. | Orders Papierfabrik August Koehler AG to pay the costs in Case C-322/07 P and Distribuidora Vizcaína de Papeles SL to pay the costs in Case C-338/07 P. |
| --- | --- |

5.

Orders Papierfabrik August Koehler AG to pay the costs in Case C-322/07 P and Distribuidora Vizcaína de Papeles SL to pay the costs in Case C-338/07 P.

---

(1)  OJ C 223, 22.9.2007.

1

---