EN Official Journal of the European Union C 311/28

Appeal brought on 31 August 2011 by Caffaro Srl under special administration (formerly Caffaro Srl) against the judgment delivered by the General Court (Sixth Chamber, extended composition) on 16 June 2011 in Case T-192/06 Caffaro v Commission

(Case C-447/11 P)

2011/C 311/46

Language of the case: Italian

Parties

Appellant: Caffaro Srl, under special administration (formerly Caffaro Srl) (represented by: A. Santa Maria, C. Biscaretti di Ruffia and E. Gambaro, lawyers)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment under appeal and, accordingly, annul Commission Decision C(2006) 1766 final of 3 May 2006 in so far as it imposed on Caffaro Srl, jointly and severally with SNIA SpA, a fine of EUR 1 078 million or, in the alternative;

— Set aside the judgment under appeal and, as a consequence, annul the parts of the decision covered by such pleas put forward in the present notice of appeal as the Court may find to be acceptable and well founded;

— In the alternative, reduce to a nominal amount or substantially reduce the fine imposed on the appellant, taking account of the legal grounds and facts put forward in the present notice of appeal;

— In the further alternative, refer the matter back to the General Court for a fresh decision in accordance with any guidance and criteria which the Court is minded to provide in the present appeal proceedings;

— In any event, order the Commission to pay the costs of both sets of proceedings.

Pleas in law and main arguments

By its first ground of appeal, Caffaro alleges breach of Article 101 TFEU, Article 23(2) and (3) of Regulation (EC) No 1/2003, (1) and the Commission Guidelines on the method of setting fines, (2) incorrect legal characterisation, distortion of the facts and some of the evidence, breach of the duty to state reasons and lack of reasoning and contradictory reasoning in the part of the judgment under appeal in which the General Court dismissed as irrelevant Caffaro’s situation of economic dependence in the market concerned and the harm suffered by it specifically as a result of the cartel.

By its second ground of appeal, Caffaro alleges that the General Court infringed the principle of equal treatment and Article 23(2) and (3) of Regulation (EC) No 1/2003 as well as the Commission Guidelines on the method of setting fines, with regard to the reference year taken into account by the Commission in the decision in connection with what is referred to as ‘different treatment’. In particular, the complaint relates to the attribution to all the participants in the purported infringement (except Caffaro) of market shares for 1999.

By the third ground of appeal, Caffaro claims that the General Court erred as regards the claim that the fact that the appellant did not participate in the unlawful contracts of 26 November 1998 did not have any effect on the duration of Caffaro’s participation. In particular, Caffaro alleges breach of Article 23(2) and (3) of Regulation (EC) No 1/2003 and the Commission Guidelines on the method of setting fines with regard to duration, failure to state adequate reasons, incorrect appraisal of the facts and breach of the obligation to state reasons.

By its fourth ground of appeal, which relates to the claim that the Commission’s action is out of time and therefore time-barred, Caffaro alleges misapplication of Article 25 of Regulation (EC) No 1/2003, distortion and incorrect legal characterisation of the facts, misuse of power, breach of the general principles of European Union law, breach of its rights of defence and failure to state adequate reasons in the judgment under appeal. In particular, Caffaro contends that the General Court failed to take account of the Commission’s lack of action for a year after the act interrupting the limitation period, before sending to the appellant a request for information, without carrying out any investigation and without providing any express reasons.

Lastly, by the fifth ground of appeal, Caffaro alleges that the judgment under appeal failed to state adequate reasons and incorrectly assessed the attenuating circumstances on which Caffaro relied before the Commission. The appellant submits that the General Court also acted in breach of the rules of procedure and incorrectly assessed some of the evidence, to its detriment.

(1) OJ 2003 L 1. p. 1.

(2) OJ 1998 C 9, p. 3.