EN Official Journal of the European Union C 96/28

Action brought on 23 February 2006 — Stempher and Koninklijke Verpakkingsindustrie Stempher v Commission

(Case T-68/06)

(2006/C 96/46)

Language of the case: Dutch

Parties

Applicants: Stempher B.V. (Rijssen, Netherlands) and Koninklijke Verpakkingsindustrie Stempher C.V. (represented by: J.K. de Pree, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicants claim that the Court should:

— annul Articles 1(2), 2, 3 and 4 of the Commission decision of 30 November 2005, as amended by the Commission decision of 7 December 2005, relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial bags — C(2005) 4634 final), or at least in so far as those provisions find that Stempher breached Article 81 EC, in so far as a fine is imposed on Stempher in that regard, in so far as Stempher is enjoined to bring that breach to an end and to refrain from repeating any act or conduct described in Article 1, and any act or conduct having an identical or similar object or effect, and to the extent to which that decision is addressed to Stempher;

— order the Commission to pay its own costs and those of the applicants.

Pleas in law and main arguments

The applicants are challenging the Commission decision of 30 November 2005 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial bags).

In support of their action, the applicants submit that the decision is at variance with Article 81 EC and with Articles 7 and 23 of Regulation No 1/2003 (1) by reason of the fact that there was inadequate evidence to justify a finding that the applicants had acted in breach of Article 81 EC.

The applicants submit further that the decision is contrary to Article 25 of Regulation No 1/2003 and to Regulation No 2988/74 (2), which was previously in force, on the ground that the authority to pursue the alleged breach has become time-barred.

In the alternative, the applicants submit that Article 2 of the contested decision is at variance with Article 23(3) of Regulation No 1/2003 and the guidelines relating to fines (3). The severity of the breach of which the applicants were accused was incorrectly appraised and was wrongly classified as being very serious. Furthermore, the applicants allege, inaccurate matters and information were taken into account in setting the fine. This, they submit, resulted in a disproportionately heavy fine.

The applicants submit in conclusion that the contested decision was adopted in disregard of essential procedural requirements and contrary to the principle that reasons must be given, inasmuch as no careful investigation was carried out and there was no proper description of the breach in which the applicants are alleged to have participated or of the market on which that breach allegedly took place. Nor, according to the applicants, is there any description of the factors which formed the basis for the appraisal of the gravity of the breach of which they stand accused.

(1) 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 (Text with EEA relevance) (OJ 2003 L 1, p. 1).

(2) Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1).

(3) Information from the Commission - Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).