Appeal brought on 21 September 2018 by Brugg Kabel AG and Kabelwerke Brugg AG Holding against the judgment of the General Court (Eighth Chamber) delivered on 12 July 2018 in Case T-441/14 Brugg Kabel AG and Kabelwerke Brugg AG Holding v European Commission

(Case C-591/18 P)

(2018/C 399/36)

Language of the case: German

Parties

Appellants: Brugg Kabel AG and Kabelwerke Brugg AG Holding (represented by: A. Rinne and M. Lichtenegger, Rechtsanwälte)

Other party: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 12 July 2018 in Case T-441/14 and annul the decision of the respondent of 2 April 2014 (Case AT.39610 — Power Cables) insofar as it relates to the appellants;

— in the alternative, set aside the judgment of the General Court referred to in first point and annul the decision of the respondent referred to in the first point insofar as: — the fine against the appellants is set at EUR 8 490 000, and — the appellants are ordered to pay the costs and reduce the fine in accordance with the submissions made by the appellant at first instance as the General Court sees fit;

— in the further alternative, set aside the judgment of the General Court referred to in the first point and refer the case back to the General Court;

— order the respondent to pay the costs.

Pleas in law and main arguments

In support if its appeal, the appellants rely on six grounds of appeal.

First ground of appeal: infringement of the rights of the defence through communication in English of the request for information and the objections

With regard to the language versions of the request for information and of the statement of objections made available to the appellants, the General Court wrongfully concluded that an excessively low degree of comprehension was sufficient. The proper choice of a language version that is understood by the relevant addressee should allow him to comprehend the claims made against him so that he is fully able to put together a comprehensive defence. It is not enough merely ‘sufficiently’ to be able to understand the nature and extent of the claims, in order ‘usefully to adopt a position’.

Further, the General Court failed to recognise that, in that respect, the usefulness of the replies for the Commission is irrelevant; what is relevant is only whether the affected undertaking was in a position, despite the Commission’s refusal to make another language version available, fully to defend itself against those claims.

Second ground of appeal: infringement of the rights of the defence by refusing access to the observations of other undertakings in respect of the objections

The General Court set excessively strict standards as to the requirements for the granting to an affected undertaking of access to the non-confidential replies of other addressees to the statement of objections. An addressee of the statement of objections should be granted access when the affected undertaking shows that, with respect to those claims, there are plausible circumstances in the overall proceedings that therefore make it appear entirely possible that there are exculpatory passages or annexes among the non-confidential replies of another addressee of the statement of objections.

The General Court failed to recognise that it was an infringement of the principles of the rule of law to allow only the Commission to review the replies of other addressees of the statement of objections for (potentially) exculpatory passages or annexes. In that respect, the Commission was acting simultaneously as an investigative/enforcement body, a decision-making body and also as a defence body in the same action, without having the ability to recognise the necessary factual connections.

Third ground of appeal: infringement of the principle of the presumption of innocence by the establishment of the date of commencement of participation in the infringement as 14 December 2001

The General Court applied an insufficiently low standard of proof with regard to the evidence for the commencement of participation in a single and lasting infringement. The Commission should have provided precise, convincing and unanimous evidence justifying its firm belief that the date chosen was the start-date for the participation in the infringement of the competition rules. If the General Court had still had doubts, the benefit of those doubts should have been given to the affected undertaking, in accordance with the principle of in dubio pro reo.

The General Court failed to recognise that, for the purposes of rebutting circumstantial evidence, it is sufficient to undermine such evidence with contrary circumstantial evidence. In the interests of the equality of arms, an affected party cannot be required to produce entirely exculpatory evidence in administrative proceedings for the imposition of penalties.

Fourth ground of appeal: distortion of evidence and infringement of the presumption of innocence by the acceptance of uninterrupted participation in the infringement between 12 May 2005 and 8 December 2005

The General Court distorted the evidence relating to the establishment of the uninterrupted participation by the appellants in the infringement when, despite the range of circumstantial evidence provided being contradictory and inconsistent, it arrived at the certain and doubtless conviction that the infringement was continued and uninterrupted.

In that regard, the General Court also failed to recognise the appropriate standard for the rebuttal of circumstantial evidence.

Fifth ground of appeal: Distortion of evidence, infringement of the presumption of innocence and infringement of the principle of proportionality by the establishment of liability on the basis of agreements relating to submarine power cables, home markets and high-volume projects

The General Court applied an insufficiently low standard of proof and distorted the evidence with regard to the appellants’ liability for independent and separable parts of the infringement — such as, for example, submarine cables, home markets and high-volume projects — in which the appellants neither participated nor had an interest.

The General Court ignored the disproportionate and inappropriate risks associated with such a broad interpretation of the legal concept of a single and continuing infringement for undertakings that have not taken part in all parts, but that may nonetheless be jointly liable under national law for the harm caused.

Given the current status of the harmonisation of the law of compensation at an EU-level, the recourse to parties who are also jointly liable on a national level is not an appropriate tool sufficiently to compensate the broad liability to third parties.

Sixth ground of appeal: infringement of Article 23(2) and (3) of Regulation 1/2003 (1) and the principles of legality, proportionality and ne bis in idem when setting the fine

The General Court wrongly established 2004 as a reference year for the value of sales which was neither representative of the appellants, nor illustrative of their genuine size or economic power.

Further, the General Court failed to recognise that, first, the Commission could not rely, for the purposes of justifying liability, on a single and continuing infringement — that is to say, a single cartel — that covered both the A/R configuration and the R-configuration and, second, for the purposes of setting the fine, it was unable artificially to divide again the numerous and supposedly indivisible parts of the infringement.

(1) OJ L 1, 4.1.2003, p. 1.