CELEX: C2002/169/63
Language: en
Date: 2002-07-13 00:00:00
Title: Case T-122/02: Action brought on 17 April 2002 by Mitsubishi HiTec Paper Bielefeld GmbH against the Commission of the European Communities

13.7.2002              EN                      Official Journal of the European Communities                                       C 169/35
Action brought on 17 April 2002 by Royal Philips                                principles of proper administration, in that it has referred
Electronics N.V. against the Commission of the European                         the case to the French authorities with regard to the
                          Communities                                           impact of the acquisition on the French market, instead
                                                                                of dealing with the case in full itself.
                         (Case T-119/02)
                                                                          (1) OJ 1990 L 257, p. 13.
                         (2002/C 169/62)                                  (2) Not yet published in the OJ.
                   (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 April 2002 by Royal Philips                    Action brought on 17 April 2002 by Mitsubishi HiTec
Electronics N.V., represented by Mr E.H. Pijnacker Hordijk and            Paper Bielefeld GmbH against the Commission of the
Ms N. Cronstedt of De Brauw Blackstone Westbroek, The                                         European Communities
Hague (The Netherlands).
                                                                                                    (Case T-122/02)
The applicant claims that the Court should:                                                        (2002/C 169/63)
—     annul the Approval Decision and the Referral Decision;
                                                                                             (Language of the case: English)
—     order the Commission to pay the costs.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 17 April 2002 by Mitsubishi HiTec
Pleas in law and main arguments                                           Paper Bielefeld GmbH, represented by Mr Andrzej W.J. Kmiecik
                                                                          and Mr Ivo Van Bael of Van Bael & Bellis, Brussels (Belgium).
The applicant in the present case, a Dutch company active in
the areas of lighting, consumer electronics, electrical household         The applicant claims that the Court should:
appliances, components, semiconductors and medical systems,
seeks the annulment of two Decisions by the Commission of
8 January 2002 in case COMP/M.2621 — SEB/Moulinex,                        —     annul Article 1 of the Decision insofar as it alleges that
regarding the acquisition by Group SEB of the small electrical                  the applicant was involved in an infringement before
appliances business of SA Moulinex under, respectively,                         1 January 1993;
Article 9(3) (the referral Decision) and Article 6(1)(b) and
(2) (the approval Decision) of Regulation No 4064/89, of                  —     reduce the amount of the fine imposed on the applicant;
21 December 1989, on the control of concentrations between
undertakings (1). The same merger procedure is also the subject
of Case T-114/02 Babyliss/Commission (2).                                 —     order the Commission to bear the costs.
In support of its pleas, the applicant submits that:
                                                                          Pleas in law and main arguments
—     the Commission has breached Article 6(1)(c) and 6(2) of
      Regulation No 4064/89 and committed a manifest error
      in assessing the relevant facts of the case, in that it             By the present application, the applicant contests part of the
      approved the notified concentration in the first phase of           Commission Decision of 20 December 2001 in case COMP/
      its investigation accepting the commitments offered by              E-1/36.212-Carbonless paper, by which the Commission
      SEB.                                                                concluded that the applicant infringed Article 81(1) of the
                                                                          Treaty and Article 53(1) of the EEA Agreement by participating
                                                                          in a complex of agreements and concerted practices in the
—     the Commission has breached Articles 6(1)(c), 6(2) and              sector of carbonless paper from January 1992 until September
      9(3) of Regulation No 4064/89, Article 253 EC, and the              1995, and imposed a fine on the applicant.
 ---pagebreak--- C 169/36                 EN                      Official Journal of the European Communities                                       13.7.2002
According to the applicant, the Commission failed to establish                    specified therein at a rate substantially lower than 6,77 %;
the applicant’s participation in an infringement before January                   and
1993. The applicant claims that there is no proof that it
participated in 1992 in general cartel meetings nor national or
regional cartel meetings. Therefore, the burden of proof is not             —     order the Commission to pay the costs.
met and, as a consequence, the fine should be reduced.
The applicant claims further that the fine imposed is dispro-
portionate to its turnover in the relevant market and that the              Pleas in law and main arguments
application by the Commission of the Leniency notice (1)
applicable at the time violates the principle of legitimate
expectation and equal treatment.
                                                                            By the contested Decision, the Commission found that the
                                                                            applicant and ten other manufacturers of carbonless paper had
                                                                            infringed Article 81(1) of the EC Treaty and article 53(1) of
(1) Commission Notice on the non-imposition or reduction of fines           the EEA Agreement by participating in a complex of agree-
    in cartel cases (OJ C 207, 18.7.1996, p. 4).                            ments and concerted practices by which they fixed price
                                                                            increases, allocated sales quotas and fixed market shares and
                                                                            set up machinery to monitor the implementation of the
                                                                            restrictive agreements.
                                                                            The applicant accepts that it infringed Article 81(1) EC and
                                                                            accepts that a fine may be imposed for its infringement. The
                                                                            applicant does however contest the gravity of the infringement
                                                                            in respect of which the Decision finds it liable.
Action brought on 16 April 2002 by Carrs Paper Ltd.
  against the Commission of the European Communities
                           (Case T-123/02)                                  The applicant submits that the Decision is inadequately
                                                                            reasoned and that the Commission made a manifest error in
                                                                            assessing the gravity of the applicant’s infringement. The
                           (2002/C 169/64)                                  applicant maintains that it did not know that it was party to
                                                                            an infringement which extended beyond the UK and Ireland,
                                                                            and that the findings of the Decision in this respect are
                     (Language of the case: English)                        not supported by sufficient evidence and are inadequately
                                                                            reasoned. The applicant also alleges that the commercial
                                                                            pressure to which the applicant was subjected by the ringleader
                                                                            of the cartel mitigates the gravity of its infringement.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 April 2002 by Carrs Paper Ltd.,                  Furthermore, the applicant submits that the fine is in any event
represented by Mr John Grayston and Mr André Bywater of                     disproportionate and should be significantly reduced. It points
Eversheds, Brussels (Belgium).                                              out that its participation in the cartel was marginal, that its
                                                                            cooperation with the Commission merits a reduction of more
                                                                            than 10 % in the fine imposed, that the state of the carbonless
                                                                            paper industry at the time justifies a reduction in the fine and
The applicant claims that the Court should:                                 that the fine is disproportionate to the applicant’s ability to
                                                                            pay a fine.
—     fix the amount of the fine imposed on the applicant by
      Article 3 of Commission Decision C(2001)4573 final
      corr. of 20 December 2001 relating to a proceeding
      pursuant to Article 81 of the EC Treaty and Article 53 of             Finally, the applicant submits that Article 3 (3) of the Decision
      the EEA Agreement (Case COMP/E-1/36.212 — Car-                        should be annulled, no reasons having been given for the
      bonless paper) at an amount substantially lower than                  imposition of a default interest rate of 6,77 %, being a 3,5 %
      EUR 1,57 million;                                                     premium over the ECB base rate.
—     annul Article 3, subparagraph 3, of the Decision as it
      concerns the applicant, alternatively fix the rate of interest