CELEX: C2002/202/07
Language: en
Date: 2002-08-24 00:00:00
Title: 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

C 202/6                EN                    Official Journal of the European Communities                                       24.8.2002
—     Substantive errors in the application of Article 81(1) EC         Pleas and main arguments
      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             —     Infringement of substantive law
      meeting at which boycott measures by the others were
      discussed cannot be used as evidence of participation in                —     Infringement of the prohibition of retroactive effect
      such a boycott.                                                               and non-observance of the principle of protection
                                                                                    of legitimate expectations
(1) Brugg Rohrsysteme GmbH v Commission [2002] ECR II-0000.
(2) OJ 1999, L 24, p. 1.                                                      —     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-
Appeal brought on 4 June 2002 by LR af 1998 (Germany)                               ation in administrative proceedings would not fun-
GmbH [formerly Lögstör Rör (Deutschland) GmbH]                                      damentally alter during the course of the adminis-
against the judgment of 20 March 2002 by the Fourth                                 trative proceedings concerned in this dispute and
Chamber of the Court of First Instance of the European                              that fundamental changes would at any rate not be
Communities in Case T-16/99 between Lögstör Rör                                     applied with retroactive effect.
(Deutschland) GmbH and the Commission of the Euro-
                       pean Communities
                                                                        —     Legally incorrect exercise of discretion in the application
                                                                              and interpretation of Article 15(2) of Regulation No 17:
                         (Case C-208/02 P)                                    First, adoption of the ‘guidelines’, together with the
                                                                              Commission’s new practice in setting fines, no longer
                          (2002/C 202/07)                                     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
An appeal against the judgment delivered on 20 March 2002                     application of Article 15(2) of Regulation No 17 in regard
by the Fourth Chamber of the Court of First Instance of the                   to the applicant reveals a misuse of discretion in several
European Communities in Case T-16/99 between LR af 1998                       respects. In its decision the Commission did not appraise
(Germany) GmbH [formerly Lögstör Rör (Deutschland) GmbH]                      the individual differences in the duration of the infringe-
and the Commission of the European Communities (1) was                        ment and the intensity thereof. Furthermore, with the
brought before the Court of Justice of the European Communi-                  retroactive application of the ‘guidelines’ the Commission
ties on 4 June 2002 by LR af 1998 (Germany) GmbH [formerly                    is departing from its settled administrative practice in
Lögstör Rör (Deutschland) GmbH], represented by Hans-                         procedures leading to the imposition of fines whereby,
Joachim Hellmann, of Shearman & Sterlin in Mannheim, with                     until the well known cartonboard proceedings, it assessed
an address for service in Luxembourg at the Chambers of                       the individual contribution to the infringement in accord-
Linklaters Loesch.                                                            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.
The appellant claims that the Court should:
1.    Annul Commission Decision 1999/60/EC of 21 October                      —     Infringement of essential formal requirements
      1998, notified to the plaintiff on 12 November 1998 and
      published in the Official Journal of the EC of 30 January               —     Infringement of the requirement to provide a state-
      1999 (2), relating to a proceeding under Article 85 of the                    ment of reasons
      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,                                                              —     Infringement of the principle of the right to be heard
      in the alternative,
      reduce the fine.                                                  (1) Lögstör Rör (Deutschland) GmbH v Commission of the European
                                                                            Communities [2002] ECR II-0000.
2.    Order the defendant to pay the costs;                             (2) OJ 1999 L 24, p. 1.
      in the further alternative,
      set aside the judgment appealed against and refer the case
      back for a decision by the Court of First Instance.