Appeal brought on 9 December 2021 by Nichicon Corporation against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 29 September 2021 in Case T-342/18, Nichicon Corporation v Commission

(Case C-757/21 P)

(2022/C 64/37)

Language of the case: English

Parties

Appellant: Nichicon Corporation (represented by: A. Ablasser-Neuhuber, F. Neumayr, G. Fussenegger, H. Kühnert, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The Appellant claims that the Court should:

— set aside the judgment under appeal and annul the Commission decision C(2018) 1768 final of 21 March 2018 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40136 Capacitors, ‘decision at issue’) insofar as it concerns the Appellant;

— in the alternative, set aside the judgment under appeal in so far as the General Court rejected — the first plea in law regarding material errors of fact concerning the meetings of ‘18 December 1998’, ‘April/May 2005’, ‘February 2009’, ‘July 2009’, ‘9 March 2010’ and ‘31 May 2010’ in order to establish the Appellant’s participation in an infringement of EU competition law; — the second part of the second plea in law, relating to the Appellant's lack of liability for bilateral and trilateral contacts between the other undertakings concerned; — the third part of the second plea in law, relating to the lack of participation in a single and continuous infringement before 7 November 2003; — the fourth plea in law concerning manifest errors of assessment in the determination of the fine; and consequently, partially annul the decision at issue and reduce the fine of EUR 72 901 000 imposed on the Appellant to a proportionate amount;

— in the alternative, refer the case back to the General Court for reconsideration, and

— order the Commission to pay the costs.

Pleas in law and main arguments

In essence, the Appellant relies on 4 pleas in law.

First plea in law: infringement of an essential procedural requirement due to missing authentication of the judgment under appeal

The judgment under appeal, was not signed by hand by the responsible judges. It therefore lacks the necessary authentication. The missing signatures must be assessed as an essential procedural requirement was infringed. The judgment under appeal must be therefore annulled.

Second plea in law: errors in reviewing the Commission's findings of fact

The General Court's analysis of the pleas raised by the Appellant at first instance is vitiated by distortions of evidence, errors of law, and insufficient reasoning.

Third plea in Law: errors of law in reviewing the Commission's findings regarding the existence of and the Appellant's liability for participation in a single and continuous infringement

First, the General Court provided insufficient reasons for and erred in law in rejecting the plea that the Commission had not established the Appellant's liability for bilateral and trilateral meetings between other undertakings concerned to the requisite legal standard. Secondly, the General Court erred in law in rejecting the Appellant's plea that the Commission had failed to establish a continuous infringement.

Fourth plea in Law: manifest errors of assessment in setting the fine

First, the General Court errs in law by taking as a basis the value of sales invoiced to the EEA instead of the value of sales shipped / consigned to the EEA. Furthermore, by determining the gravity multiplier with 16 %, the General Court sets an insufficient legal standard by not taking account of the individual circumstances of the Appellant. Secondly, the General Court insufficiently considered mitigating factors in terms of the absolute amount of the fine imposed on the Appellant being disproportionate. The General Court hereby, inter alia, infringes the principle of proportionality and equal treatment by failing to duly reflect the Applicant’s limited participation. Further, the General Court errs in law by rejecting to accept the Appellant’s negligence and competitive conduct as mitigating factors.