EN Official Journal of the European Union C 51/41

Action brought on 23 December 2009 — Toshiba v Commission

(Case T-519/09)

2010/C 51/77

Language of the case: English

Parties

Applicant: Toshiba Corp. (represented by: J. MacLennan, Solicitor, A. Schulz, J. Jourdan and P. Berghe, lawyers)

Defendant: European Commission

Form of order sought

— annul the Decision of the European Commission relating to proceedings under Article 81 EC (Article 101 TFEU) and Article 53 EEA in case COMP/39.129 — Power Transformers in so far as it relates to the applicant;

— cancel the fine imposed on the applicant;

— in the alternative, in the event that the contested decision is upheld in whole or in part, reduce the fine imposed on the applicant;

— order the Commission to pay the applicant’s costs incurred in these proceedings;

— grant such other order as may be necessary to give effect to the judgment of the Court.

Pleas in law and main arguments

By means of the present application, the applicant seeks the annulment of Commission decision of 7 October 2009 (Case No COMP/39.129 — Power Transformers) in so far as the Commission found the applicant liable of infringement of Article 81 EC and Article 53 EEA by participating in the sharing of markets by means of the Gentlemen’s Agreement between European and Japanese producers of power transformers to respect each others home markets and to refrain from selling in those markets. Alternatively, the applicant seeks the reduction of the fine imposed upon it.

In support of its claims the applicant submits four pleas in law.

First, the applicant submits that the Commission failed to prove to the requisite legal standard the existence of, and the applicant’s participation in, a Gentlemen’s Agreement, or indeed any agreement or concerted practice, between European and Japanese producers of power transformers.

Second, the applicant argues that the Commission failed to establish jurisdiction over the alleged Gentlemen’s Agreement, even if, quod non, proved. It submits that, due to the very high barriers to entry, such an agreement was not capable of having an immediate and substantial effect on competition in the EU or an influence on the pattern of trade between Member States.

In its third plea, put forward alternatively, the applicant contends that the Commission erred in deciding on the duration of the infringement and of the applicant’s participation therein. It submits that the Commission failed to prove that some meetings had any anti competitive object or effect and that by participating in them the applicant infringed European competition law.

Further in the alternative, in its fourth plea, the applicant claims that the Commission erred in law and in fact in setting the basic amount of its fine. First, it submits that the Commission erred in choosing the reference year to calculate the value of the applicant’s sales departing thus from the methodology set out in the Fining Guidelines. Furthermore, in the applicant’s opinion, the Commission committed a manifest error of appreciation in ignoring the very high barriers to entry on the European market an assuming that Toshiba could have achieved to the EEA market a market share equal to its worldwide market share. The applicant also submits that the Commission wrongly interpreted Paragraph 18 of the Fining Guidelines to justify estimating the value of the applicant’s EEA sales on the basis of its worldwide sales rather then looking only at the markets affected by the alleged infringement. As a result, the applicant considers that the fine imposed on it is disproportionate.