EN Official Journal of the European Union C 51/44

Action brought on 7 December 2007 — YKK and Others v Commission

(Case T-448/07)

(2008/C 51/83)

Language of the case: English

Parties

Applicants: YKK Corp. (Tokyo, Japan), YKK Holding Europe BV (Sneek, Netherlands), YKK Stocko Fasteners GmbH (Wuppertal, Germany) (represented by: H. Kaneko and C. Vennemann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested decision in so far as it concerns each of the applicants;

— as a consequence, cancel the fines imposed on each of the applicants;

— in the alternative, annul Article 2 of the contested decision in so far as it concerns each of the applicants, or, at least cancel or reduce the fines imposed on each of the applicants;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2007) 4257 final of 19 September 2007 in Case COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC by:

— agreeing on coordinated price increases and exchanging confidential information on prices and implementation of price increases within the ‘Baseler, Wuppertaler and Amsterdamer cooperation’;

— fixing prices, monitoring price increases and allocating customers in a bilateral cooperation with Prym Fashion; and

— exchanging price information, discussing prices and agreeing on a methodology to fix minimum prices in a tripartite cooperation with Coats and Prym.

In support of their application, the applicants submit that the 1,25 multiplier for deterrence imposed on them breaches the principle of proportionality.

Concerning the ‘Baseler, Wuppertaler and Amsterdamer cooperation’, the applicants allege that, with respect to YKK Stocko Fasteners, the Commission misapplied Article 23(2) of Regulation 1/2003 (1), according to which the fine to be imposed on an undertaking shall not exceed 10 % of its total turnover in the preceding business year. Furthermore, the increase by 1,25 for deterrence is, according to the applicants, not justified for the period prior to the acquisition of YKK Stocko Fasteners by YKK Holding Europe.

Concerning the bilateral cooperation between Prym Fashion and the applicants YKK Stocko Fasteners and YKK Corp., the applicants contend that the Commission was incorrect to assume that the cooperation was of a worldwide dimension.

Concerning the tripartite cooperation between Coats, Prym and the applicant YKK Holding Europe, the applicants consider:

— that the Commission failed to prove to the requisite standard that the discussions about harmonising prices at the five zip fastener meetings in 1998 and 1999 constitute an agreement or concerted practice in violation of Article 81 EC;

— that if the discussions at the five zip fastener meetings in 1998 and 1999 were to constitute an infringement of Article 81 EC, the applicants should have been granted a reduction of fines for their cooperation with the Commission under the Commission's Leniency Program;

— that these discussions are not sufficient to be categorised as a ‘very serious’ infringement;

— that the fine imposed by the Commission is disproportionate to the nature of any possible infringement; and

— that the Commission failed to consider the impact of such an infringement on the EC market.

(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).