Case T-235/07: Action brought on 4 July 2007 — Bavaria v Commission
Date: 2007-07-04
Institutions: Court of First Instance
Subjects: action for annulment (EU), beverage industry, competition law, fine, unlawful agreement

C 211/40

EN

Official Journal of the European Union

8.9.2007

The applicant goes on to put forward six heads of complaint in
relation to the Commission's substantive findings. According to
the applicant, the Commission infringed Article 81 EC, the obli-
gation to state reasons and the principles of sound administra-
tion in its findings with regard to, first, the avowed objective of
the agreements, second,
the alleged incidental allocation of
clients in the catering and home-use market sectors, third, the
alleged coordination of other commercial conditions, fourth, the
alleged agreement and/or adjustment concerning prices and
price increases in both the catering and home-use market
sectors, including private-label beer, fifth, the alleged duration of
the infringement and, sixth,
the applicant's ostensibly direct
participation in the alleged infringement.

excise duty in applying the

The applicant concludes by putting forward two heads of
the fine imposed.
complaint relating to the quantum of
It
turnover figure which
submits that, by applying a notional
includes
legally permissible
maximum of 10 %, the Commission breached Article 23(2) of
Regulation No 1/2003 (1). The applicant also takes issue with
the disproportionate nature of
in which
connection it argues that the Commission failed to make allow-
ance for the length of the proceedings and failed to have regard
for the contrast with the parallel Belgian beer case (2).

the fine imposed,

(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) Case No IV/37/614.F3 PO/Interbrew and Alken-Maes (OJ 2003

L 200, p. 1).

Action brought on 4 July 2007 — Bavaria v Commission

(Case T-235/07)

(2007/C 211/76)

Language of the case: Dutch

Parties

Applicant: Bavaria NV (represented by: O.W. Brouwer, D. Mes
and A.C.E. Stoffer, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— set aside in whole or in part the Commission decision of
18 April 2007 relating to a proceeding under Article 81 EC

(Case COMP/B-2/37.766 — Netherlands beer market —
C(2007) 1697 final) to the extent to which that decision
concerns Bavaria NV;

— in the alternative, reduce the fine imposed on Bavaria NV;

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

Pleas in law and main arguments

The applicant
is challenging the Commission decision of
18 April 2007 relating to a proceeding under Article 81 EC
(Case COMP/B-2/37.766 — Netherlands beer market), by which
a fine was imposed on the applicant.

its application,

In support of
submits
that there has been an infringement of the principle of sound
administration in so far as the Commission failed to institute a
full, careful and impartial investigation.

the applicant

first

Second, it is claimed that the Commission breached Article 81 EC
through manifest errors of appraisal, misapplication of the law
in establishing the existence of the breach, disregard for the
presumption of innocence, and infringement of the principle of
legality and of the obligation under Article 253 EC to state
reasons.

Third, the applicant contends that the Commission erred in its
determination of the duration of the breach.

Fourth, it is alleged that, in determining the level of the fine
imposed on the applicant, the Commission breached Article 23
of Regulation No 1/2003 (1), the guidelines on fines based on
that regulation (2), the principle of equality and the principle of
proportionality.

Fifth, the applicant alleges that there was a manifest failure by
the Commission to carry out its investigation within a reason-
able time-frame inasmuch as that investigation lasted more than
seven years.

Sixth, the applicant claims that there has been an infringement
of essential procedural requirements, of the principle of sound
administration and the rights of the defence, consisting in the
refusal to grant it access to the replies of other breweries to the
statement of objections and to sections of the Commission's file
of crucial importance for the applicant's defence.

(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) Commission Notice — Guidelines on the method of setting fines
to Article 15(2) of Regulation No 17 and

imposed pursuant
Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).