EN Official Journal of the European Union C 90/31

Action brought on 13 February 2009 — Saint-Gobain Glass France and Others v Commission

(Case T-56/09)

2009/C 90/49

Language of the case: French

Parties

Applicants: Saint-Gobain Glass France SA (Courbevoie, France), Saint-Gobain Sekurit Deutschland GmbH & Co. KG (Aachen, Germany), Saint-Gobain Sekurit France SAS (Thourotte, France) (represented by: B. van de Walle de Ghelcke, B. Meyring, M. Guillaumond and E. Venot, lawyers)

Defendant: Commission of the European Communities

Form of order sought (1)

— annul the amended version of the decision of the Commission of the European Communities C(2008) 6815 final of 12 November 2008 relating to a proceeding under Article 81 EC in Case COMP/39.125 — Car glass as adopted by Decision C(2009) 863 final of 11 February 2009, which was notified to the applicants on 13 and 16 February 2009, together with the grounds on which the operative part of the decision was reached, in so far as the amended version of that decision is addressed to the applicants; alternatively, annul Article 2 thereof;

— in the alternative, to reduce the fine imposed on the applicants in Article 2 of the amended version of the decision as adopted by Decision C(2009) 863 final of 11 February 2009, which was notified to the applicants on 13 and 16 February 2009, to an appropriate amount;

— order the defendant to pay the costs.

Pleas in law and main arguments

With the present action, the applicants seek the partial annulment of Commission Decision C(2008) 6815 final of 12 November 2008 in Case COMP/39.125 — Car glass, in which the Commission found that certain undertakings, including the applicants, had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by sharing contracts for the supply of car glass and by coordinating their pricing policies and supply strategies on the European market for car glass.

In support of their action, the applicants rely on eight pleas in law alleging:

— infringement of the right to an independent and impartial tribunal and of the right to respect for the presumption of innocence in so far as the fine was imposed by an administrative authority which holds simultaneously powers of investigation and sanction, and that Regulation No 1/2003 (2) is unlawful in so far as it does not provide for that right to an independent and impartial tribunal;

— infringement of the right of the applicants to a fair hearing since the applicants were not given an opportunity by the Commission to comment on the method for calculating the fine pursuant to the 2006 guidelines on fines (3);

— infringement of Article 253 EC since the contested decision is not reasoned to the requisite legal standard in so far as the Commission did not specifically explain on the basis of which sales the turnover in relation to the infringement had been calculated;

— infringement of Article 23(2) of Regulation No 1/2003 and of the principle that penalties are personal and a misuse of powers as the 10% ceiling should have been applied solely to the applicants’ turnover and not to the turnover of the Compagnie de Saint-Gobain;

— infringement of the principle of non-retroactivity of penalties in so far as the Commission applied the 2006 guidelines on fines retroactively, which resulted in a significant and unforeseeable increase in the level of the fines, by basing the contested decision on those guidelines despite the fact that they were adopted after the infringement had ended;

— infringement of the principle of proportionality in that the fine imposed was excessive, disproportionate and cannot be justified by the objective of deterrence;

— infringement of Article 23 of Regulation No 1/2003 and failure to state reasons in so far as the Commission is not entitled to base its decision on the two cases of previous infringement which were regarded as relevant in the contested decision, on the ground that neither of those two decisions was addressed to the applicants;

— an error of law and of assessment in the application of Article 23(2)(a) and (3) of Regulation No 1/2003 in that the Commission did not take into account, in calculating the fine, that the applicants had not substantially contested the accuracy of the facts.

(1) As amended after the action was brought because of a corrigendum to the contested decision adopted by the Commission.

(2) 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).

(3) Commission Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).