EN Official Journal of the European Union C 297/23

Action brought on 1 October 2009 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

(Case T-384/09)

2009/C 297/35

Language of the case: German

Parties

Applicants: SKW Stahl-Metallurgie Holding AG (Unterneukirchen, Germany) and SKW Stahl-Metallurgie GmbH (Unterneukirchen, Germany) (represented by: A. Birnstiel, S. Janka and S. Dierckens, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision, insofar as it concerns the applicants;

— in the alternative, amend Article 2 of the contested decision, which imposes a fine on the applicants, to the effect that the fine is lifted or at least substantially reduced;

— order the defendant to bear its own costs and to pay those incurred by the applicants.

Pleas in law and main arguments

The applicants have brought an action against Commission Decision C(2009) 5791 final of 22 July 2009 in Case COMP/39.396 — Calcium Carbide and magnesium based reagents for the steel and gas industries. The contested decision imposes a fine on the applicants and other undertakings in respect of an infringement of Article 81 EC as well as Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sectors in the whole of the European Economic Area, with the exception of Spain, Portugal, Ireland and the United Kingdom, taking the form of market sharing, agreements on quotas, customer allocation, price fixing and the exchange of confidential information relating to prices, customers and sales volumes.

In support of their actions, the applicants have submitted six pleas.

First, the applicants claim that the defendant infringed the applicants’ rights of defence when it failed to give the applicants the opportunity of a hearing for the submission of oral arguments.

Second, the applicants claim that the Commission committed an error of law in the application of Article 81(1) EC. In this respect, the applicants claim that the Commission wrongly attributed the actions of SKW Stahl-Metallurgie GmbH to SKW Stahl-Metallurgie Holding AG. Further, the applicants claim that it is impossible to meet the conditions for the rebuttal of the presumption that a parent company has decisive influence over its subsidiary. At the same time, the defendant’s conduct breached the principle of ex officio investigation.

Third, the applicant claims that the Commission infringed its obligation to state reasons pursuant to Article 253 EC, since it did not explain why the applicants’ submission did not suffice to refute the presumption that SKW Stahl-Metallurgie Holding AG had decisive influence over SKW Stahl-Metallurgie GmbH.

Fourth, the applicants claim that, as regards the calculation of the fines, the Commission in several respects infringed the principle of equal treatment.

Fifth, the applicants claim that, as regards the calculation of the fines, the Commission infringed Articles 7 and 23 of Regulation (EC) No 1/2003 (1) as well as the principle of proportionality and the principle that penalties must have a proper legal basis.

Finally, the applicants claim that there has been an infringement of Article 23(2) of Regulation (EC) No 1/2003, since the fine the Commission imposed on SKW Stahl-Metallurgie GmbH exceeded 10 % of the turnover of that company.

(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).