EN Official Journal of the European Union C 301/59

Action brought on 15 September 2010 — voestalpine and voestalpine Austria Draht v Commission

(Case T-418/10)

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2010/C 301/95

Language of the case: German

Parties

Applicants: voestalpine AG (Linz, Austria), voestalpine Austria Draht GmbH (Bruck an der Mur, Austria) (represented by: A. Ablasser-Neuhuber and G. Fussenegger, lawyers)

Defendant: European Commission

Form of order sought

— Annul Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement in Case COMP/38.344 — Prestressing steel, in so far as it relates to the applicants;

— in the alternative, reduce the fine imposed on the applicants under Article 2 of the Decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants contest Commission Decision C(2010) 4387 final of 30 June 2010 in Case COMP/38.344 — Prestressing steel. The contested decision imposed fines on the applicants and other undertakings for infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a continuing agreement and/or concerted action in the prestressing steel sector in the internal market and the EEA.

In support of their action, the applicants have submitted three pleas in law.

By the first plea in law, the applicants submit that they did not infringe Article 101 TFEU. They maintain that it is misconceived for them to be held liable for participation exclusively by virtue of a commercial agent in Italy, since that commercial agent did not represent the applicants at meetings of the ‘Club Italia’; the conduct of a non-exclusive commercial agent cannot be imputed to the applicants in the absence of an economic unit; the defendant’s automatic imputation of the conduct of a non-exclusive commercial agent is contrary to the case-law of the Court; and the applicants had no knowledge at all of the commercial agent’s actions. In the alternative, it is submitted that the duration of the infringement was set incorrectly with respect to the applicants.

By the second plea in law, the applicants deny any participation in a single, complex and continuing infringement. They submit, inter alia, that the ‘Club Italia’ infringement is to be distinguished from other infringements referred to in the contested decision. Furthermore, they submit that they did not participate in a single, complex and continuing infringement since they had no knowledge of the overall plan, could not reasonably have foreseen it and would not have been prepared to accept the risks arising therefrom.

Lastly, by their third plea, the applicants complain of errors in the calculation of the fine. The applicants allege infringement of the principle of proportionality, since a disproportionately large fine was imposed in connection with new (unforeseeable) legal issues and the same fine was imposed in the case of mere knowledge of infringements by other undertakings. Furthermore, infringements are said to have occurred in respect of the principle of equal treatment, the Guidelines on setting fines (1) and the rights of the defence, as well as the right to a fair trial.

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