Case C-407/08 P: Appeal brought on 19 September 2008 by Knauf Gips KG against the judgment of the Court of First Instance (Third Chamber) delivered on 8 July 2008 in Case T-52/03 Knauf Gips KG v Commission of the European Commission
Date: 2008-09-19
Institutions: Court of Justice
Subjects: Germany, appeal, equal treatment, fine, infringement of EU law, plaster

6.12.2008

EN

Official Journal of the European Union

C 313/13

Furthermore,
in the applicant's submission the marketing of
medicinal products that are generics of the reference product
Plavix could not be covered by the transitional period laid down
in point 1.5 of Annex XII to the Act concerning the conditions
of accession, because the exceptions provided for
therein
concerned exclusively the requirements of safety, quality and
efficacy prescribed in Directive 2001/83/EC, and not
the
10-year period of data protection laid down in Article 13(4) of
Regulation (EEC) No 2309/93 and Articles 89 and 90 of Regu-
lation (EC) No 726/2004.

— in the alternative, refer the case back to the Court of First

Instance for a fresh decision;

— in the further alternative, reduce the fine imposed on the
appellant by Article 3 of the contested Commission Deci-
sion of 27 November 2002 in an appropriate manner, and
in any event by at least EUR 54,51 million;

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

(1) Directive 2001/83/EC of

the European Parliament and of

the
Council of 6 November 2001 on the Community code relating to
medicinal products for human use (OJ L 311, 28.11.2001, p. 67).
(2) Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down
Community procedures for the authorisation and supervision of
medicinal products for human and veterinary use and establishing a
European Agency for the Evaluation of Medicinal Products (OJ L 214,
24.8.1993, p. 1).

(3) Regulation (EC) No 726/2004 of the European Parliament and of the
Council of 31 March 2004 laying down Community procedures for
the authorisation and supervision of medicinal products for human
and veterinary use and establishing a European Medicines Agency
(OJ L 136, 30.4.2004, p. 1).

Appeal brought on 19 September 2008 by Knauf Gips KG
against the judgment of the Court of First Instance (Third
Chamber) delivered on 8 July 2008 in Case T-52/03 Knauf
Gips KG v Commission of the European Commission

(Case C-407/08 P)

(2008/C 313/19)

Language of the case: German

Parties

Appellant: Knauf Gips KG (represented by: M. Klusmann and S.
Thomas, Rechtsanwälte)

Other party to the proceedings: Commission of
Communities

the European

Form of order sought

— Set aside the judgment of the Court of First Instance (Third
Chamber) of 8 July 2008 in Case T-52/03 Knauf Gips KG v
Commission in its entirety;

Pleas in law and main arguments

The appeal against the judgment, by which the Court of First
Instance dismissed the action brought by the appellant against
Commission Decision 2005/471/EC of 27 November 2002, is
based on three pleas in law.

1. By its first plea on appeal, the appellant submits that there
was a breach of the rights of the defence, including a breach
of the right to a fair hearing. The appellant submits that the
Court of First Instance failed to observe the principles that
apply with regard to the legal consequences of a refusal to
grant access to incriminating documents and the withholding
of exculpatory evidence. By the first part of this plea, the
appellant submits that
the Commission's decision should
have been annulled, because the Commission denied the
appellant access to incriminating evidence on which the deci-
sion was subsequently based. By the second part of the first
plea, the appellant submits that the judgment under appeal
involved a separate breach of
the appellant's rights of
defence, given that the Commission also illegally withheld
exculpatory evidence, which likewise should have led to the
annulment of the decision.

2. By its second plea on appeal, the appellant submits that
there was an infringement of Article 81(1) EC, due to funda-
mental breaches of the rules on evidence, namely of the in
dubio pro reo principle, as well as breaches of substantive law,
namely as regards the elements constituting a concerted
led to the
practice, which,
assumption — constituting an error of
law — that
Article 81(1) EC had been breached.

in the judgment under appeal,

3. By its third plea on appeal, the appellant submits that there
was an infringement of the 10 % ceiling under Article 15(2)
of Regulation No 17/62. The appellant submits that the
Court of First Instance wrongly attributed to the appellant
the turnover of undertakings which the appellant does not
control and which do not control the appellant. The appel-
lant submits that it and those undertakings do not form part
of the same economic unit.