Appeal brought on 20 September 2019 by Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG against the judgment of the General Court (Seventh Chamber) delivered on 11 July 2019 in Case T-582/15, Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG v European Commission

(Case C-702/19 P)

(2019/C 383/62)

Language of the case: German

Parties

Appellants:

Silver Plastics GmbH & Co. KG (represented by: M. Wirtz and S. Möller, Rechtsanwälte)

Johannes Reifenhäuser Holding GmbH & Co. KG (represented by: C. Karbaum, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court of Justice should:

1. set aside the judgment under appeal and refer the case back to the General Court for a fresh examination;

2. in the alternative, set aside the judgment under appeal and annul the contested decision for the second appellant and reduce the fine imposed on the first appellant;

3. in the alternative, set aside the judgment under appeal and reduce the fine imposed jointly and severally on the appellants;

4. order the Commission to pay the costs of the appeal and of the proceedings before the General Court.

Grounds of appeal and main arguments

By the first ground of appeal, the appellants allege that the General Court infringed Article 6(3) TEU, Article 6(1) ECHR and Article 47(2) of the Charter of Fundamental Rights of the European Union, in conjunction with the principle of directness.

Contrary to several requests made by the appellants, the General Court infringed procedural rules in failing to summon Mr W, the significant source of the leniency application that was submitted by competitor L and taken into account to the detriment of the appellants, as a witness and to hear him in person. Furthermore, that Court considered all of the statements made by Mr W, submitted by the appellants in writing and contradicting the leniency application, to be lacking in credibility, but without hearing Mr W in that regard. According to the principle of the direct adduction of evidence, the General Court should have summoned Mr W and heard him (directly) in person in that regard.

By the second ground of appeal, the appellants claim that the General Court infringed the principle of audi alteram partem enshrined in Article 6(1) (in conjunction with Article 6(3)(d)) ECHR.

The General Court refused the appellants’ request, even after it had been made repeatedly, to directly question Mr W in his capacity as a key source of the leniency application relied on to the detriment of the appellants. It infringed procedural rules in assessing the credibility of the statements made by Mr W in the leniency application without granting a right directly to question him and justified the ruling against the appellants essentially on the basis of those statements without there being any legitimate reasons for restricting the right to question him.

By the third ground of appeal, the appellants argue that there has been an infringement of the principle of equality of arms pursuant to Article 6(3)(d) ECHR.

Contrary to several requests made by the appellants, the General Court infringed procedural rules in failing to hear Mr W in his capacity as a witness on the appellants’ behalf even though the Commission had heard Mr W in his capacity as a key source of the leniency application in the previous administrative-fine proceedings without the knowledge and in the absence of the appellants and without preparing a transcript. The refusal to hear in person other witnesses put forward by the appellants to testify on their behalf infringed the principle of equality of arms guaranteed to the appellants.

By the fourth ground of appeal, the appellants allege an infringement of the duty to state reasons pursuant to Article 36 of the Statute of the Court of Justice of the European Union, in conjunction with the first paragraph of Article 53 of that statute, because it was not clear to them (i) on what basis the General Court (positively) infers participation in alleged anti-competitive contacts, (ii) why it regarded the exculpatory (written) statements made by Mr W as lacking credibility and (iii) for what specific reasons it refused to grant the right to question him.

The fifth ground of appeal alleges an infringement of Article 23(3) of Regulation (EC) No 1/2003 (1) due to an excessively far-reaching assumption by the General Court that there was one single and continuous infringement.

According to the findings of the General Court, the appellants did not participate in anti-competitive conduct in respect of all product areas during the entire assumed period of the infringement. However, the calculation of the fine confirmed by the General Court was based on the turnover of all product areas for the entire assumed period of the infringement.

By the sixth ground of appeal, the appellants allege an infringement of the first and second sentences of Article 23(2) of Regulation No 1/2003.

The General Court erred in law in assuming that the appellants formed an economic unit and therefore erred in law in including the turnover of the first appellant in the calculation of the fine despite the fact that the appellants had explained why no decisive influence was exercised by the second appellant over the first appellant, thus refuting the presumption of an economic unit applied by the General Court.

By the seventh ground of appeal, the appellants allege an error in the calculation of the fine pursuant to the second subparagraph of Article 23(2) of Regulation No 1/2003 because, in fixing the amount of the fine, the General Court wrongly included the turnover of a former subsidiary of the second appellant. The fine therefore exceeded the statutory upper limit of 10 % of the turnover of the fined undertaking.

(1) 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).