Case C-208/02 P: Appeal brought on 4 June 2002 by LR af 1998 (Germany) GmbH [formerly Lögstör Rör (Deutschland) GmbH] against the judgment of 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-16/99 between Lögstör Rör (Deutschland) GmbH and the Commission of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), heating, restriction on competition, restrictive trade practice, type of business

C 202/6

EN

Official Journal of the European Communities

24.8.2002

— Substantive errors in the application of Article 81(1) EC
in relation to participation in the boycott of Powerpipe:
since the appellant as a mere dealer was not able to
contribute to a boycott its participation in a single
meeting at which boycott measures by the others were
discussed cannot be used as evidence of participation in
such a boycott.

(1) Brugg Rohrsysteme GmbH v Commission [2002] ECR II-0000.
(2) OJ 1999, L 24, p. 1.

Appeal brought on 4 June 2002 by LR af 1998 (Germany)
GmbH [formerly Lögstör Rör (Deutschland) GmbH]
against the judgment of 20 March 2002 by the Fourth
Chamber of the Court of First Instance of the European
Communities in Case T-16/99 between Lögstör Rör
(Deutschland) GmbH and the Commission of the Euro-
pean Communities

(Case C-208/02 P)

(2002/C 202/07)

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-16/99 between LR af 1998
(Germany) GmbH [formerly Lögstör Rör (Deutschland) GmbH]
and the Commission of the European Communities (1) was
brought before the Court of Justice of the European Communi-
ties on 4 June 2002 by LR af 1998 (Germany) GmbH [formerly
Lögstör Rör (Deutschland) GmbH], represented by Hans-
Joachim Hellmann, of Shearman & Sterlin in Mannheim, with
an address for service in Luxembourg at the Chambers of
Linklaters Loesch.

The appellant claims that the Court should:

1. Annul Commission Decision 1999/60/EC of 21 October
1998, notified to the plaintiff on 12 November 1998 and
published in the Official Journal of the EC of 30 January
1999 (2), relating to a proceeding under Article 85 of the
EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe
Cartel) (OJ 1999 L 24, p. 1) in so far as it concerns the
applicant,

in the alternative,

reduce the fine.

2. Order the defendant to pay the costs;

in the further alternative,

set aside the judgment appealed against and refer the case
back for a decision by the Court of First Instance.

Pleas and main arguments

— Infringement of substantive law

— Infringement of the prohibition of retroactive effect
and non-observance of the principle of protection
of legitimate expectations

— By means of the ‘guidelines’ the Commission created
a system of fines which is not within the limits of its
authority under Article 15(2) of Regulation No 17
and applied that new system to factual situations
occurring before adoption of the ‘guidelines’. The
applicant made the legitimate assumption that the
practice in connection with the imposition of fines
and the principles concerning assessment of cooper-
ation in administrative proceedings would not fun-
damentally alter during the course of the adminis-
trative proceedings concerned in this dispute and
that fundamental changes would at any rate not be
applied with retroactive effect.

— Legally incorrect exercise of discretion in the application
and interpretation of Article 15(2) of Regulation No 17:
First, adoption of
together with the
the ‘guidelines’,
Commission’s new practice in setting fines, no longer
comes within the margin of discretion permitted under
Article 15(2) of Regulation No 17 and thus runs counter
to the fundamental principle according to which the
administration must act lawfully. Secondly, the actual
application of Article 15(2) of Regulation No 17 in regard
to the applicant reveals a misuse of discretion in several
respects. In its decision the Commission did not appraise
the individual differences in the duration of the infringe-
ment and the intensity thereof. Furthermore, with the
retroactive application of the ‘guidelines’ the Commission
is departing from its settled administrative practice in
procedures leading to the imposition of fines whereby,
until the well known cartonboard proceedings, it assessed
the individual contribution to the infringement in accord-
ance with the Court’s settled case-law. Finally, application
of the ‘guidelines’ leads to imposition of an exorbitant
fine in relation to other addressees of the decision.

— Infringement of essential formal requirements

— Infringement of the requirement to provide a state-

ment of reasons

— Infringement of the principle of the right to be heard

(1) Lögstör Rör (Deutschland) GmbH v Commission of the European

Communities [2002] ECR II-0000.

(2) OJ 1999 L 24, p. 1.