Case T-457/05: Action brought on  30 December 2005  — Zwicky v Commission
Date: 2006-03-11
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, iron and steel industry, unlawful agreement

C 60/46

EN

Official Journal of the European Union

11.3.2006

Action brought on 30 December 2005 — Zwicky v
Commission

(Case T-457/05)

(2006/C 60/86)

Language of the case: German

Parties

Applicant: Zwicky & Co. AG (Wallisellen, Switzerland) (repre-
sented by:
J. Burrichter, B. Kasten and S. Orlikowski-Wolf,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul Article 1(1) of the decision in so far as it declares
that the applicant infringed Article 81 EC and Article 53 of
the EEA Agreement as
regards Sweden, Norway and
Finland, or in the alternative for the period from January
1990 up to and including December 1993;

— annul Article 2 of the decision in so far as it imposes a fine

of EUR 0.174 million on the applicant;

— in the alternative, reduce the fine imposed in Article 2 of

the decision as appropriate;

— annul Article 3 of the decision as regards the applicant;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant
is challenging Commission Decision C(2005)
3452 final of 14 September 2005 in Case 38.337 — PO/
Thread (amended by the defendant's decision of 13 October
2005). In the contested decision a fine was imposed on the
applicant for infringement of Article 81 EC and Article 53 of
the EEA Agreement.

Moreover, Article 2 of the defendant's decision infringes Article
15(2) of Regulation No 17/1962 (2) or Article 23(2) of Regu-
lation No 1/2003. That illegal act is based on the infringement
of fundamental principles regarding the assessment of fines.

Furthermore, the defendant infringed Article 15(2) of Regu-
lation No 17/1962 or Article 23(2) of Regulation No 1/2003
by way of Article 2 of the contested decision, inasmuch as it
incorrectly applied the 1996 Leniency Notice to the detriment
of the applicant.

Fifthly, the applicant submits that Article 2 of the contested
decision is a violation of the principle of proportionality as
insufficient regard was had to the individual position of the
applicant in fixing the fine.

Lastly, the applicant submits that the direction, in Article 3 of
the Commission's decision, to redress infringements and desist
from them in future infringes Article 7(1) of Regulation No
1/2003 as it is neither necessary nor proportionate in the
applicant's case.

(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 (OJ 2003 L 1, p. 1).

(2) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (OJ, English Special Edition 1959-
1962, p. 87).

Action brought on 30 December 2005 — Tegometall
International v OHIM

(Case T-458/05)

(2006/C 60/87)

Language in which the application was lodged: German

In support of its application the applicant is relying on six
pleas in law.

Parties

First,
it alleges infringement of Article 7 of Regulation No
1/2003. (1) In this connection it submits that the finding as to
the extent and duration of the infringements in Article 1(1) of
the contested decision is incorrect.

In its second plea in law the applicant submits that there has
been an infringement of Article 23(2) of Regulation No
1/2003. It considers that the fine imposed on it exceeds the ten
percent of its total turnover in the business year preceding the
decision. Consequently the imposition of the fine on the appli-
cant in Article 2 of the contested decision is unlawful.

Applicant: Tegometall International AG (Lengwil, Switzerland)
(represented by: H. Timmann, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM:
Wupperman AG (Leverkusen, Germany)