EN Official Journal of the European Union C 146/19

Appeal brought on 20 February 2015 by Ferriera Valsabbia SpA and Valsabbia Investimenti SpA against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2014 in Case T-92/10 Ferriera Valsabbia and Valsabbia Investimenti v Commission

(Case C-86/15 P)

(2015/C 146/28)

Language of the case: Italian

Parties

Appellants: Ferriera Valsabbia SpA and Valsabbia Investimenti SpA (represented by: D.M. Fosselard, avocat, D. Slater, Solicitor, and A. Duron, avocate)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

— set aside the judgment under appeal for the reasons indicated below; and

— giving a final ruling pursuant to Article 61 of the Statute of the Court of Justice, annul the contested decision to the extent that it concerns the appellants;

— in the alternative, in the event of a finding by the Court that there are no grounds for setting aside the judgment under appeal in its entirety, reduce the fine imposed on the appellants for the reasons set out below;

— in the further alternative, in the event that the Court does not give a final ruling on the case, reserve the costs and refer the case back to the General Court for reconsideration, in accordance with the judgment of the Court of Justice;

— lastly, pursuant to Article 69 of the Rules of Procedure, order the Commission to pay the costs at first instance and on appeal.

Grounds of appeal and main arguments

The appellants rely on the following grounds of appeal:

By the first ground of appeal, the appellants submit that the General Court infringed Article 10 of Regulation No 773/2004 (1). In particular, the General Court held that the Commission was entitled to readopt the decision contested in the proceedings at first instance (‘the contested decision’) without first having to issue a new statement of objections.

By the second ground of appeal, the appellants argue that the General Court infringed Article 14 of Regulation No 773/2004 in ruling that the Commission was entitled to readopt the contested decision on the basis of Regulation No 1/2003 (2) without giving the Member States’ representatives the possibility of hearing the undertakings directly.

By the third ground of appeal, the appellants submit that the General Court infringed the principle of collegiality. The General Court held that the Commission was entitled to adopt the contested decision following a procedure in the course of which the College did not adopt the whole contested decision on a specific date, but instead adopted it in two parts on two different dates on the understanding that, together, those two parts could constitute a full decision.

By the fourth ground of appeal, the appellants complain that there has been an infringement of Article 47 of the Charter of Fundamental Rights (‘the Charter’), as interpreted in the light of Article 6 of the European Convention on Human Rights (‘the Convention’), in so far as the General Court infringed the appellants’ right to be heard within a reasonable time. Specifically, approximately three years elapsed between the closure of the written procedure and the General Court’s decision to open the oral procedure. A delay on that scale amounted to an infringement of the right, referred to in Article 47 of the Charter, to an effective remedy and an infringement of the right to be heard within a reasonable time. The infringement of Article 47 of the Charter is particularly serious in the circumstances, in view of the fact that the appellants had to wait more than 14 years for a court (the General Court) to resolve the dispute on the merits, the Commission’s initial decision having been annulled on procedural grounds after a procedure lasting around seven years.

By the fifth ground of appeal, the appellants complain that there has been an infringement of Article 65 of the ECSC Treaty. In particular, the appellants argue that the General Court disregarded the specific context of the ECSC Treaty and the duties of disclosure and non-discrimination imposed on undertakings in the context of that treaty, thereby misapplying the case-law of the Court relating to cartels. The appellants submit that the repeated publication over time of price lists not in alignment with the price proposed in the context of the cartel in question has had the effect of interrupting the concerted practice adopted by that cartel, whose objective was, according to the General Court, to fix minimum prices. Instead, the General Court held that it was necessary to distance themselves publicly even further.

By the sixth ground of appeal, the appellants submit that the General Court infringed Article 47 of the Charter, as interpreted in the light of Article 6 of the Convention, when it found that the length of the administrative procedure (that is to say, the procedure before the European Commission) was not excessive for the purposes of those provisions. In the present case, the administrative procedure took, in total, almost 54 months, including the initial procedure and the subsequent re-adoption procedure. In addition, the two or more years which were necessary for the Commission to readopt the contested decision appear excessive. The grounds stated by the General Court as justification for the length of the re-adoption procedure appear inadequate and contradictory, besides being manifestly inconsistent with the previous case-law of the General Court.

By the seventh ground of appeal, the appellants complain that there has been an infringement of Article 23 of Regulation No 1/2003 and the principle of equal treatment. In particular, the Commission had subdivided the undertakings into groups in order to determine the basic fine to be applied to each undertaking, attempting — according to the contested decision — to maintain a proportionate relationship between the average market share of each group and the basic fine imposed on the individual undertakings belonging to that group. Although it subsequently acknowledged that the Commission had underestimated the average market share of one of those groups, with the result that the relationship of proportionality which the Commission had meant to maintain had not been maintained, the General Court did not find it necessary to re-establish that relationship.

(1) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).