EN Official Journal of the European Union C 301/38

Action brought on 8 September 2010 — Hansa Metallwerke and Others v Commission

(Case T-375/10)

()

2010/C 301/63

Language of the case: German

Parties

Applicants: Hansa Metallwerke AG (Stuttgart, Germany), Hansa Nederland BV (Nijkerk, Netherlands), Hansa Italiana Srl (Castelnuovo del Garda, Italy), Hansa Belgium Sprl (Asse, Belgium), Hansa Austria GmbH (Salzburg, Austria) (represented by: H.-J. Hellmann, lawyer)

Defendant: European Commission

Form of order sought

— annul the Commission’s decision of 23 June 2010, notified to the applicants on 30 June 2010, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom fixtures and fittings) in so far as it concerns the applicants;

— in the alternative, reduce the applicants’ fine;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants contest Commission Decision C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom fittings and fixtures. In the contested decision, fines were imposed on the applicants and on other undertakings on account of infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a continuing agreement or concerted practice in the bathroom fittings and fixtures sector in Belgium, Germany, France, Italy, the Netherlands and Austria.

In support of their action, the applicants claim, first, that the fine imposed on them unlawfully exceeds the maximum amount permitted under the second sentence of Article 23(2) of Regulation (EC) No 1/2003, (1) since the Commission incorrectly based its decision on Hansa Metallwerke AG’s total worldwide turnover.

Second, the applicants allege breach of the principle of the protection of legitimate expectations. The applicants submit that the Commission committed serious procedural errors in the course of the administrative procedure and thereby placed the applicants at a disadvantage in relation to the other parties to the procedure. The Commission failed to take account of that circumstance in the contested decision, as it had promised to do during the procedure.

Third, the applicants claim that the Commission infringed Article 23(2) of Regulation No 1/2003 on account of miscalculation of the fine in the light of the Leniency Notice. (2) They complain that, although they cooperated, they were not granted a reduction in the fine imposed on them.

Fourth, the applicants claim that the application of the Guidelines on setting fines (3) to situations which ended long before publication of those guidelines infringes the principle of non-retroactivity.

The applicants also assert that the Commission’s fine-setting practice is not covered by the enabling provision of Article 23(2) of Regulation No 1/2003. The applicants allege in this connection that the contested decision infringes the principle of equal treatment and the principle of proportionality. Furthermore, Article 23(2) of Regulation No 1/2003, as applied by the Commission in its fine-setting practice pursuant to the Guidelines on the method of setting fines, infringes the principle of the lawfulness of penalties, laid down in Article 7 ECHR and Article 49 of the Charter of Fundamental Rights of the European Union.

Lastly, the applicants complain that Article 23(2) of Regulation No 1/2003 and the Guidelines on setting fines have been misapplied on account of numerous errors of application and assessment to the applicants’ detriment. They claim in particular that the adduction and assessment of the evidence by the Commission is incorrect in relation to the individual facts of the case as regards the applicants.

(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).

(2) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

(3) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).