EN Official Journal of the European Union C 118/11

Appeal brought on 3 February 2012 by European Federation of Ink and Ink Cartridge Manufacturers (EFIM) against the judgment of the General Court (Fifth Chamber) delivered on 24 November 2011 in Case T-296/09 European Federation of Ink and Ink Cartridge Manufacturers (EFIM) v European Commission

(Case C-56/12 P)

2012/C 118/18

Language of the case: German

Parties

Appellant: European Federation of Ink and Ink Cartridge Manufacturers (EFIM) (represented by: D. Ehle, Rechtsanwalt)

Other parties to the proceedings: European Commission, Lexmark International Technology SA

Form of order sought

— Set aside the judgment of the General Court of 24 November 2011 in Case T-296/09 and determine the underlying dispute;

— allow the applications made at first instance and thus annul Commission Decision C(2009) 4125 of 20 May 2009 in a proceeding pursuant to Article 82 EC (Article 102 TFEU);

— order the Commission and Lexmark International Technology SA to pay the costs of the proceedings at first instance and of the present appeal.

Pleas in law and main arguments

The appellant puts forward five grounds of appeal against the judgment of the General Court of 24 November 2011. These relate to the legally erroneous denial in the Commission’s decision of 20 May 2009 of the existence of European Union interest and the priority of a investigation procedure relating to the law on cartels.

First, the appellant submits that the General Court erred in law in failing to annul the Commission’s decision in so far as that decision deemed it unlikely that it would be possible to establish proof of collective and individual market dominance on the part of inkjet printer manufacturers in relation to their secondary markets for ink cartridges and ink.

Second, the appellant complains that the General Court erred in law in ruling out the likelihood of establishing proof of a dominant position on the part of printer manufacturers on their markets for ink cartridges.

Third, according to the appellant, the General Court manifestly erred in law in its appraisal of the significance of the priority criterion that determines the decision to initiate an investigation. Consequently the General Court erred in law in failing to establish that, in the decision at issue, the Commission infringed its obligation to state the reasons for its decision, in the light of the assessment criteria of the significance, gravity and continuing nature of the infringement.

Fourth, the appellant submits that the judgment is wrong in law as regards the legal assessment of the Commission’s appraising decision from the point of view of misuse of powers, in that the Commission’s decision was not annulled even though — without giving reasons — it rejected the initiation of an investigation procedure on the pretext of complexity and disproportionate resources.

Finally, the judgment is incompatible with the Notice of 27 April 2004 on jurisdiction in complaint proceedings relating to cartels and on the principle of effective relief as part of the assessment of the European Union interest, as well as with the Commission’s obligation to state reasons, culminating in the non-annulment of the Commission decision at issue, notwithstanding the fact that, in its assessment of the European Union interest, the Commission contradicts its own Notice of 27 April 2004 and fails to substantiate the proposition that adequate relief is provided by the national courts.