EN Official Journal of the European Union C 303/10

Appeal brought on 16 May 2012 by FLSmidth & Co. A/S against the judgment of the General Court (Fourth Chamber) delivered on 6 March 2012 in Case T-65/06: FLSmidth & Co. A/S v European Commission

(Case C-238/12 P)

2012/C 303/20

Language of the case: English

Parties

Appellant: FLSmidth & Co. A/S (represented by: M. Dittmer, advokat, J. Ratliff, Barrister, F. Louis, avocat)

Other party to the proceedings: European Commission

Form of order sought

Relying on Article 256(1), second paragraph, Article 263 and Article 264 of the Treaty on the Functioning of the European Union Article 31 of Council Regulation 1/2003 (1), and Article 56 of the Statute of the Court of Justice, FLSmidth & Co. A/S respectfully requests that the Court of Justice:

— sets aside the judgment of 6 March 2012 in case T-65/06,

— annuls the European Commission decision of 30 November 2005 in case COMP/F/38.354 relating to a proceeding under Article 101 TFEU in so far as it concerns FLS; or in the alternative, reduces the amount for which FLS is held liable in the decision.

— orders the European Commission to pay the costs.

Pleas in law and main arguments

In support of the primary form of order sought, FLS raises two pleas in law, the last of which is supported by two sub-pleas.

— The General Court erred in law as it did not apply the correct legal test for attributing liability to an (ultimate) parent company. Also, the General Court failed to draw the correct legal consequence from the evidence submitted to it seeing that it did not conclude that FLS had succeeded in rebutting the parent liability presumption.

— The General Court failed to verify whether the Commission complied with its duty to state reasons. — The Commission itself erred by not complying with its duty to state reasons as it did not sufficiently address FLS’ submitted arguments and evidence in order to rebut the presumption of parent liability. — In addiction, the Commission did not comply with its duty to state reasons seeing that the decision contained no reasoning as to why FLS was to be liable for the period of December 1990 to December 1991.

In support of the alternative form of order sought, FLS raises four pleas in law.

— The General Court erred in law as it failed to apply the principle of proportionality and legality when reviewing the liability imposed on FLS; thus failing to reduce the liability in question accordingly.

— The General Court erred in law as it failed to put an end to the unequal treatment adopted by the Commission when granting Trioplast Industrier AB — and not FLS — a reduction of 30 pct. under the Leniency Notice.

— The General Court erred in law by misapplying Section D, second indent of the Leniency Notice, as it did not grant FLS a reduction on the grounds of non-contestation of the facts. In addition, the General Court failed to apply the principle of equal treatment as it did not take into account the fact that Bonar Technical Fabrics was granted a 10 pct. reduction, for at least the same behaviour.

— The General Court infringed Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights as it did not hand down a judgment with9in a reasonable time.

(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 L 1, p. 1