Case T-122/02: Action brought on 17 April 2002 by Mitsubishi HiTec Paper Bielefeld GmbH against the Commission of the European Communities
Date: 2002-07-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), control of restrictive practices, fine, pulp and paper industry, restriction on competition

13.7.2002

EN

Official Journal of the European Communities

C 169/35

Action brought on 17 April 2002 by Royal Philips
Electronics N.V. against the Commission of the European
Communities

principles of proper administration, in that it has referred
the case to the French authorities with regard to the
impact of the acquisition on the French market, instead
of dealing with the case in full itself.

(Case T-119/02)

(2002/C 169/62)

(Language of the case: English)

(1) OJ 1990 L 257, p. 13.
(2) Not yet published in the OJ.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 April 2002 by Royal Philips
Electronics N.V., represented by Mr E.H. Pijnacker Hordijk and
Ms N. Cronstedt of De Brauw Blackstone Westbroek, The
Hague (The Netherlands).

The applicant claims that the Court should:

Action brought on 17 April 2002 by Mitsubishi HiTec
Paper Bielefeld GmbH against the Commission of the
European Communities

(Case T-122/02)

(2002/C 169/63)

— annul the Approval Decision and the Referral Decision;

(Language of the case: English)

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case, a Dutch company active in
the areas of lighting, consumer electronics, electrical household
appliances, components, semiconductors and medical systems,
seeks the annulment of two Decisions by the Commission of
8 January 2002 in case COMP/M.2621 — SEB/Moulinex,
regarding the acquisition by Group SEB of the small electrical
appliances business of SA Moulinex under, respectively,
Article 9(3) (the referral Decision) and Article 6(1)(b) and
(2) (the approval Decision) of Regulation No 4064/89, of
21 December 1989, on the control of concentrations between
undertakings (1). The same merger procedure is also the subject
of Case T-114/02 Babyliss/Commission (2).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 April 2002 by Mitsubishi HiTec
Paper Bielefeld GmbH, represented by Mr Andrzej W.J. Kmiecik
and Mr Ivo Van Bael of Van Bael & Bellis, Brussels (Belgium).

The applicant claims that the Court should:

— annul Article 1 of the Decision insofar as it alleges that
the applicant was involved in an infringement before
1 January 1993;

— reduce the amount of the fine imposed on the applicant;

— order the Commission to bear the costs.

In support of its pleas, the applicant submits that:

Pleas in law and main arguments

— the Commission has breached Article 6(1)(c) and 6(2) of
Regulation No 4064/89 and committed a manifest error
in that it
in assessing the relevant facts of the case,
approved the notified concentration in the first phase of
its investigation accepting the commitments offered by
SEB.

— the Commission has breached Articles 6(1)(c), 6(2) and
9(3) of Regulation No 4064/89, Article 253 EC, and the

By the present application, the applicant contests part of the
Commission Decision of 20 December 2001 in case COMP/
E-1/36.212-Carbonless paper, by which the Commission
concluded that the applicant infringed Article 81(1) of the
Treaty and Article 53(1) of the EEA Agreement by participating
in a complex of agreements and concerted practices in the
sector of carbonless paper from January 1992 until September
1995, and imposed a fine on the applicant.

C 169/36

EN

Official Journal of the European Communities

13.7.2002

According to the applicant, the Commission failed to establish
the applicant’s participation in an infringement before January
1993. The applicant claims that there is no proof that it
participated in 1992 in general cartel meetings nor national or
regional cartel meetings. Therefore, the burden of proof is not
met and, as a consequence, the fine should be reduced.

specified therein at a rate substantially lower than 6,77 %;
and

— order the Commission to pay the costs.

The applicant claims further that the fine imposed is dispro-
portionate to its turnover in the relevant market and that the
application by the Commission of the Leniency notice (1)
applicable at the time violates the principle of legitimate
expectation and equal treatment.

Pleas in law and main arguments

(1) Commission Notice on the non-imposition or reduction of fines

in cartel cases (OJ C 207, 18.7.1996, p. 4).

Action brought on 16 April 2002 by Carrs Paper Ltd.
against the Commission of the European Communities

(Case T-123/02)

(2002/C 169/64)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 April 2002 by Carrs Paper Ltd.,
represented by Mr John Grayston and Mr André Bywater of
Eversheds, Brussels (Belgium).

The applicant claims that the Court should:

— fix the amount of the fine imposed on the applicant by
Article 3 of Commission Decision C(2001)4573 final
corr. of 20 December 2001 relating to a proceeding
pursuant to Article 81 of the EC Treaty and Article 53 of
the EEA Agreement (Case COMP/E-1/36.212 — Car-
bonless paper) at an amount substantially lower than
EUR 1,57 million;

— annul Article 3, subparagraph 3, of the Decision as it
concerns the applicant, alternatively fix the rate of interest

By the contested Decision, the Commission found that the
applicant and ten other manufacturers of carbonless paper had
infringed Article 81(1) of the EC Treaty and article 53(1) of
the EEA Agreement by participating in a complex of agree-
ments and concerted practices by which they fixed price
increases, allocated sales quotas and fixed market shares and
set up machinery to monitor the implementation of the
restrictive agreements.

The applicant accepts that it infringed Article 81(1) EC and
accepts that a fine may be imposed for its infringement. The
applicant does however contest the gravity of the infringement
in respect of which the Decision finds it liable.

The applicant submits that
the Decision is inadequately
reasoned and that the Commission made a manifest error in
assessing the gravity of the applicant’s infringement. The
applicant maintains that it did not know that it was party to
an infringement which extended beyond the UK and Ireland,
and that the findings of the Decision in this respect are
not supported by sufficient evidence and are inadequately
reasoned. The applicant also alleges that the commercial
pressure to which the applicant was subjected by the ringleader
of the cartel mitigates the gravity of its infringement.

Furthermore, the applicant submits that the fine is in any event
disproportionate and should be significantly reduced. It points
out that its participation in the cartel was marginal, that its
cooperation with the Commission merits a reduction of more
than 10 % in the fine imposed, that the state of the carbonless
paper industry at the time justifies a reduction in the fine and
that the fine is disproportionate to the applicant’s ability to
pay a fine.

Finally, the applicant submits that Article 3 (3) of the Decision
should be annulled, no reasons having been given for the
imposition of a default interest rate of 6,77 %, being a 3,5 %
premium over the ECB base rate.