EN Official Journal of the European Union C 282/27

Appeal brought on 2 September 2009 by ThyssenKrupp Nirosta AG, formerly ThyssenKrupp Stainless AG against the judgment of the Court of First Instance (Fifth Chamber) delivered on 1 July 2009 in Case T-24/07 ThyssenKrupp Stainless AG v Commission of the European Communities

(Case C-352/09 P)

2009/C 282/47

Language of the case: German

Parties

Appellant: ThyssenKrupp Nirosta AG, formerly ThyssenKrupp Stainless AG (represented by: M. Klusmann and S. Thomas, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

1. Set aside the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of 1 July 2009 in Case T-24/07 ThyssenKrupp Stainless AG v Commission in its entirety;

2. In the alternative, refer the case back to the Court of First Instance for fresh judgment;

3. In the further alternative, reduce by an appropriate amount the fine imposed on the appellant in Article 2 of the contested decision of the Commission of 20 December 2006;

4. Order the Commission to pay the costs.

Pleas in law and main arguments

The subject of the appeal is the judgment of the Court of First Instance, by which the appellant’s action seeking annulment of the Commission’s decision of 20 December 2006 relating to a proceeding under Article 65 CS was dismissed. The present proceedings concern a cartel infringement in the market for special steel products which according to the Commission’s findings ended in January 1998. The infringement fell within the scope of Article 65 CS.

The appellant bases its appeal on five pleas in law.

By its first plea in law, the appellant alleges an infringement of the nulla poena sine lege principle, of Article 23 of Regulation (EC) No 1/2003 and of Articles 5 EC, 7(1) EC and 83 EC, and also claims that the sovereignty of the ECSC signatory States has been undermined, to the extent that the Court confirmed the legal basis relied upon by the Commission — consisting of Article 65(1) CS in conjunction with Article 23 of Regulation No 1/2003. Since the expiry of the ECSC Treaty, Article 65(1) CS has not been a valid basis for the imposition of penalties. Therefore the Commission acted upon the wrong legal basis. Nor can the imposition of a fine be based by extension on Article 23 of Regulation No 1/2003. According to the system of competences under the Treaty, that provision authorises the imposition of penalties only in respect of infringements of EC law, not of ECSC law.

By its second plea in law, the appellant claims that the principles of res judicata and nulla poene sine lege have been infringed, and that Article 23 of Regulation No 1/2003 has been misapplied, in so far as the Court confirmed the Commission’s standpoint that the infringement by Thyssen Stahl AG can be imputed to the appellant in its place. Thyssen Stahl AG continues to exist as a solvent undertaking and could therefore have been called to account by the Commission. That was also the decision of the Court of Justice in 2005 in its judgment in Joined Cases C-65/02 P and C-73/02 P concerning the Commission’s original decision of 1998. Even if the Court proceeded in its judgment on the basis of a substantive imputation of liability to the appellant, that cannot be regarded as having finally decided the issue for the purposes of the present proceedings, since they are based on a new Commission decision. The appellant can moreover in no circumstances be held liable for the actions of Thyssen Stahl AG on the basis of its declaration, which is merely a declaration of the imputation of liability under private law, since a declaration by an undertaking can never lead to the imputation of an obligation to pay a fine.

By its third plea in law, the appellant alleges an infringement of the principle of legal certainty. The legal basis on which the sanction was imposed, as confirmed by the Court, that is Article 23 of Regulation No 1/2003, does not indicate in a sufficiently clear or unambiguous way that it refers to infringements of Article 65(1) CS. Furthermore, the concept of ‘imputation of liability by declaration’ accepted by the Commission and the Court has not been clearly or unambiguously established by law, either with regard to the conditions for its application or its legal consequences.

By its fourth plea in law, the appellant complains that there has been an infringement of the rules concerning time-bar. Since the appellant is merely to be fined for an infringement committed originally by Thyssen Stahl AG, the time-bar issue must also be considered in relation to the position of Thyssen Stahl AG. Since Thyssen Stahl AG did not bring any legal proceedings against the Commission’s original decision, the limitation period in respect of it was not suspended. In the meantime, legal proceedings have therefore become time-barred, meaning that any derived responsibility of the appellant for the actions of Thyssen Stahl AG is also ruled out.

The fifth plea in law concerns an infringement of the principles governing the calculation of fines. The Court wrongly ruled out a reduction in the fine, even though the appellant in the present proceedings accepted all the facts on the basis of which the Commission found there to be an infringement of Article 65(1) CS. The rewarding of that cooperation should not have been denied on the basis that the appellant contested the application of Article 65(1) CS on legal grounds and also on legal grounds rejects the imputation of liability from Thyssen Stahl AG to itself. The reference to impermissible legal assessments does not devalue the cooperation, since legal questions must always be examined ex officio and — independently therefore of admissions by the parties — the authorities may never reach unlawful decisions.