CELEX: C2002/109/55
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-65/02 P: Appeal brought on 28 February 2002 by ThyssenKrupp Stainless GmbH (formerly doing business as KruppThyssen Stainless GmbH) against the judgment delivered on 13 December 2001 by the First Chamber of the Court of First Instance of the European Communities in Joined Cases T-45/98 and T-47/98 between KruppThyssen Stainless GmbH and Acciai speciali Terni SpA and the Commission of the European Communities

C 109/32               EN                    Official Journal of the European Communities                                         4.5.2002
customary in business circles, Article 7(1)(b) would be robbed          Pleas in law and main arguments:
of its central meaning for the purposes of examination of trade
mark applications and, moreover, the examination would
overlap with Article 7(1)(d).                                           —     Errors of law in the determination of, and the regard had
                                                                              to, the duration of the infringement for which the fine
                                                                              was imposed: the Court of First Instance erroneously
(1) Not yet published in the European Court Reports.                          rejected the contention that the infringement was only
(2) Council Regulation (EC) No 40/94 on the Community trade mark
                                                                              sporadic, although it is undisputed that, from as early as
    (OJ L 11 of 14.1.1994, p. 1).
                                                                              February 1994 onwards, the appellant has repeatedly
                                                                              independently fixed its prices for stainless steel flat
                                                                              products. The defendant and the Court of First Instance
                                                                              would have been entitled to assume that prices continued
                                                                              to be influenced by the concerted practices within the
                                                                              meaning of Article 65 of the ECSC Treaty after the next
                                                                              time the prices were independently fixed, in March 1994,
Appeal brought on 28 February 2002 by ThyssenKrupp                            only if there had been actual evidence of such continued
Stainless GmbH (formerly doing business as KruppThys-                         influence or of continued practices.
sen Stainless GmbH) against the judgment delivered on
13 December 2001 by the First Chamber of the Court of
                                                                              Even if it could not be assumed that the infringement was
First Instance of the European Communities in Joined
                                                                              only sporadic, the Court of First Instance failed to
Cases T-45/98 and T-47/98 between KruppThyssen Stain-
                                                                              recognise that the protracted length of the administrative
less GmbH and Acciai speciali Terni SpA and the Com-
                                                                              procedure worked — unfairly — to the disadvantage of
            mission of the European Communities
                                                                              the appellant, since the Commission did not make clear
                                                                              that it was acting on the presumption of an ongoing
                         (Case C-65/02 P)                                     infringement.
                         (2002/C 109/55)
                                                                        —     Error of law in so far as the initial fixed sum was taken
                                                                              into account more than once in the calculation of the
                                                                              fine: the Court of First Instance wrongly failed to address
An appeal against the judgment delivered on 13 December                       the applicant’s contention that, when applying the prin-
2001 by the First Chamber of the Court of First Instance of                   ciple of fixed-sum fines in respect of the applicant’s legal
the European Communities in Joined Cases T-45/98 and                          relationships, the Commission was entitled to impose
T-47/98 between KruppThyssen Stainless GmbH and Acciai                        only a single fine. Instead, the Commission recognised
speciali Terni SpA and the Commission of the European                         the corporate structure of the group in the non-operative
Communities (1) was brought before the Court of Justice of the                part of its decision, but failed to take it into account in
European Communities on 28 February 2002 by Thyssen-                          the calculation of the fine imposed of the applicant,
Krupp Stainless GmbH, represented by Dr Martin Klusmann,                      thereby breaching the principle of equal treatment.
Rechtsanwalt, of Freshfields Bruckhaus Deringer, Düsseldorf.
                                                                        —     Error of law in the appraisal of the applicant’s co-
The appellant claims that the Court should:                                   operation in the investigation: finally, the Court of First
                                                                              Instance erroneously held that the Commission was
(1) partially set aside the judgment of the Court of First                    entitled to grant those undertakings involved in the
      Instance of the European Communities, in so far as it                   procedure which co-operated in the investigation to
      dismisses the action brought against the Commission                     exactly the same extent as the applicant, but which
      Decision 98/247/ECSC of 21 January 1998;                                additionally admitted that, in legal terms, the facts notified
                                                                              to the applicant constituted an infringement of Article 65
(2) correct, in so far as it concerns the appellant, the finding              ECSC, a specific additional 30 % reduction in the fine in
      in Article 1 of Decision 98/247/ECSC regarding the                      respect of that admission. In addition to the principle of
      duration of the infringement;                                           protection of sources which emerges from the Com-
                                                                              mission’s notice (2), it is an axiomatic principle of the rule
(3) reduce the fine imposed on the appellant in Article 2 of                  of law that an admission of illegality cannot and must
      Decision 98/247/ECSC appropriately,                                     not be rewarded.
or, alternatively in respect of claims (1) and (2),
      refer the case back to the Court of First Instance for a          (1) Not yet published in the European Court Reports.
      new judgment which complies with the Court’s interpret-           (2) OJ 1996 C 207, p. 4.
      ation of the law;
(4) order the Commission to pay the full costs of the
      proceedings.