Appeal brought on 10 December 2021 by Nippon Chemi-Con Corporation against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 29 September 2021 in Case T-363/18, Nippon Chemi-Con Corporation v Commission

(Case C-759/21 P)

(2022/C 64/38)

Language of the case: English

Parties

Appellant: Nippon Chemi-Con Corporation (represented by: H.-J. Niemeyer, M. Röhrig, P. Neideck, Rechtsanwälte, I.-L. Stoicescu, avocate)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

— set aside the judgment under appeal and annul the European Commission's decision of 21 March 2018 (1) relating to a proceeding under Art. 101 of the Treaty on the Functioning of the European Union and Article 53 of the EEA Agreement (AT.40136 — Capacitors) in so far as the Appellant is concerned;

— in the alternative, set aside the judgment under appeal in so far as it upholds the fine imposed on the Appellant and annul Art. 2 (j) of the European Commission’s decision of 21 March 2018;

— in the subsequent alternative, reduce the amount of the fine imposed on the Appellant in the light of the grounds of appeal upheld, and

— order the European Commission to pay the costs of the proceedings at first instance and on appeal.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

1. First Plea: The absence of judges' signatures on the General Court judgment

In the absence of the three judges' signatures, the judgment is invalid in its entirety, as stated in Art. 118 of the Rules of Procedure of the General Court and Art. 37 of the General Court Statute.

2. Second Plea: Infringement of Article 101 TFEU (§ § 143-307 of the judgment)

The General Court erred in its application of Art. 101 TFEU when it confirmed the European Commission's finding of an infringement. The GC failed to properly assess the relevance of the alleged infringement for the EEA. It misapplied the body of evidence doctrine and reversed the burden of proof to the detriment of the Appellant, violating the presumption of innocence.

3. Third Plea: Single and Continuous Infringement (§ § 308-400 of the judgment)

The General Court erred in its application of Art. 101 TFEU when it concluded that there was a single and continuous infringement covering all electrolytic capacitors from 26 June 1998 to 23 April 2012. The General Court applied an incorrect legal standard for the test whether there was an overall plan, which is a constituting requirement for a single and continuous infringement. Furthermore, even if the legal test is accepted, the facts established by the GC do not allow to assume a continuous, i.e. uninterrupted, infringement.

4. Fourth Plea: Infringement by Object (§ § 401-429 of the judgment)

The General Court erred in its application of Art. 101 TFEU when it confirmed the European Commission's view, according to which the entire infringement must be qualified as a by object infringement. The General Court provided an insufficient reasoning for its finding and applied an incorrect legal standard for the assessment of the exchanged information.

5. Fifth Plea: Jurisdiction (§ § 71-83 of the judgment)

The General Court erred when it confirmed that the European Commission had territorial jurisdiction pursuant to Art. 101 TFEU and Art. 53, 56 of the EEA Agreement to sanction the entire infringement. The General Court should have applied a materiality threshold for establishing jurisdiction, rather than just resorting to a ‘mere sale [of electrolytic capacitors] within the European Union’ and, in any event, provided a sufficient reasoning for its finding.

6. Sixth Plea: Calculation of Fine (§ § 430-526 of the judgment)

The General Court failed to correctly apply the principle of proportionality and infringed a number of procedural requirements, namely the obligations to state reasons and to conduct a complete assessment of the evidence and a complete examination of the facts, when assessing the evidence that the Appellant submitted to the European Commission.

(1) Commission Decision C(2018) 1768 final.