Appeal brought on 25 November 2013 by Duravit AG and Others against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Case T-364/10 Duravit AG and Others v European Commission

(Case C-609/13 P)

(2014/C 71/07)

Language of the case: German

Parties

Appellants: Duravit AG, Duravit SA, Duravit BeLux SPRL/BVBA (represented by: Dr. U. Soltész, LL.M. and C. von Köckritz, Rechtsanwälte)

Other parties to the proceedings: European Commission, Council of the European Union

Form of order sought

The appellants claim that the Court should:

1. Set aside the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Case T-364/10 in so far as that judgment dismissed the appellants’ action;

2. Annul in their entirety, in accordance with the fourth paragraph of Article 263 TFEU, Articles 1(1), 2 and 3 of the Decision of the European Commission of 23 June 2010, C(2010) 4185 final, in Case COMP/39.092 — Bathroom fittings and fixtures, in so far as it concerns the appellants;

3. In the alternative (in relation to head of claim No 2), annul or substantially reduce the fines imposed on the appellants in the abovementioned Decision;

4. In the further alternative (in relation to heads of claim Nos 2 and 3), refer the case back to the General Court for a new decision which is consistent with the legal assessment in the Court’s judgment;

5. In any event, order the Commission to pay the costs they have incurred in respect of the proceedings before the General Court and the Court.

Grounds of appeal and main arguments

The appellants put forward six grounds of appeal in total.

First, the General Court infringed Article 31 of Regulation No 1/2003, the presumption of innocence and the right to a fair hearing (Articles 47 and 48(1) in conjunction with Article 52(3) of the Charter of Fundamental Rights of the European Union and Article 6(1) and (2) ECHR) because it refused to carry out a full review of the contested decision, which had been expressly requested, assumed that the Commission’s findings of facts and law were correct and did not sufficiently exercise its own discretion in fixing the amount of the fine.

Secondly, the General Court infringed Article 263 TFEU, the appellants’ right to an effective remedy (the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union) and the principle of equality of arms by carrying out its judicial review inadequately and exceeding the limits of that review to the detriment of the appellants.

Thirdly, the General Court, in a number of respects, obviously and in a manner which was relevant to the decision, distorted the clear sense of the evidence in the file and consequently erred in law and infringed the recognised rules of evidence.

Fourthly, the General Court made procedural errors and infringed Article 48(2) of the Rules of Procedure, the appellants’ rights of the defence, their right to a fair hearing and the principle of equality of arms by using, to the detriment of the appellants, evidence which was unusable and submitted out of time and belated arguments of the Commission and by erring in law in rejecting all of the appellants’ requests for measures of inquiry with an insufficient statement of reasons.

Fifthly, the General Court misapplied Article 101 TFEU and infringed its obligation to state reasons by holding that the Commission was right in accusing the appellants of participating in a single, cross-product infringement in respect of taps and fittings, shower enclosures and ceramic sanitary ware.

Sixthly, the General Court misapplied Article 101 TFEU by applying an incorrect criterion in assessing an exchange of information under Article 101(1) TFEU, assuming that the appellants were under an obligation to distance themselves from the discussions of non-competing undertakings and regarding alleged ‘attempted agreements’ on special occasions in cross-product associations as a completed infringement of Article 101 TFEU.