Case C-213/02 P: Appeal brought on 7 June 2002 by ABB Asea Brown Boveri Ltd against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in case T-31/99 between ABB Asea Brown Boveri Ltd and the Commission of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), fine, heating, interpretation of the law, restriction on competition, restrictive trade practice, type of business

24.8.2002

EN

Official Journal of the European Communities

C 202/7

Appeal brought on 7 June 2002 by ABB Asea Brown
Boveri Ltd against the judgment delivered on 20 March
2002 by the Fourth Chamber of the Court of First Instance
of the European Communities in case T-31/99 between
ABB Asea Brown Boveri Ltd and the Commission of the
European Communities

(Case C-213/02 P)

(2002/C 202/08)

An appeal against the judgment delivered on 20 March 2002
by the Fourth Chamber of the Court of First Instance of the
European Communities in case T-31/99 (1) between ABB Asea
Brown Boveri Ltd and the Commission of the European
Communities, was brought before the Court of Justice of the
European Communities on 7 June 2002 by ABB Brown
Boveri Ltd, established in Zurich (Switzerland), represented by
A. Weitbrecht, M. Bay and S. Seelmann-Eggebert, lawyers, with
an address for service in Luxembourg.

The Appellant claims that the Court should:

(1)

(2)

(3)

(4)

(5)

set aside Sections 2 and 3 of the operative part of the
Judgment; and

annul Article 3 of the Decision as it relates to the
Appellant; and

further reduce the fine imposed on the Appellant by the
Decision;

alternatively to points (2) and (3);

refer the case back to the Tribunal
for decision in
accordance with the judgment of the Court of Justice; and

require the Commission to pay the costs of the entire
proceedings, including those of the Appellant.

Pleas in law and main arguments

Misapplication of the Tribunal’s Rules of Procedure leading to
the rejection as inadmissible of the Opinion submitted by ABB
as an annex to its Reply.

Misinterpretation of Article 48(2): The Judgment
fails to
distinguish between new pleas in law and arguments support-
ing pleas already raised. The Opinion’s introduction was
admissible because it amplifies a plea raised in the Application
rather than introducing new pleas in law.

Misinterpretation of Article 44(1)(c): ABB recognizes that
general references to other documents cannot compensate for
deficiencies in a party’s application. However, the Tribunal has
found a defect neither in the Application nor in ABB’s Reply.
ABB thus cannot conceivably have compensated a defective
submission by a general reference to the Opinion. Moreover,
there is, and the Judgment has established, no basis for relying
on Article 44(1)(c) of the Tribunal’s Rules of Procedure by way
of analogy.

Misinterpretation of the principle of legitimate expectations:
The Judgment fails to recognize that legitimate expectations
may arise from the Commission’s fining practice, that the
Leniency Notice invites undertakings to rely on these fining
practices and that the level of protection of legitimate expec-
limiting the Commission’s
tations is thereby strengthened,
discretion to at will depart from an established practice.

The Judgment misapplies Article 15(2) of Regulation No. 17 (2):
The Commission has used the defendant undertakings’ turn-
over in the products affected by the infringement only in order
to divide these undertakings into four categories; in order to
‘reflect the importance of each firm in the pipe sector’, it has not
used the turnover affected by the infringement to determine the
gravity of the infringement (before taking into account the
duration, aggravating and attenuating circumstances and the
reduction under the Leniency Notice).

(1) OJ C 121, 1.5.1999, p. 16.
(2) of the Council of 6 February 1962, First Regulation implementing
Articles 85 and 86 of the Treaty (OJ L 13, 21.2.1962, p. 204 [SE
SER1 (59-62) p. 87]).

Reference for a preliminary ruling by the Sozialgericht
Stuttgart by order of that Court of 4 June 2002 in the
case of Karin Müller against Postbeamtenkrankenkasse;
Additional party: Bundesversicherungsanstalt für Ange-
stellte

(Case C-215/02)

(2002/C 202/09)

Reference has been made to the Court of Justice of the
European Communities by order of the Sozialgericht Stuttgart
(Social Court, Stuttgart) of 4 June 2002, received at the Court
Registry on 10 June 2002, for a preliminary ruling in the case
of Karin Müller against Postbeamtenkrankenkasse; Additional
party: Bundesversicherungsanstalt für Angestellte on the fol-
lowing questions: