CELEX: C2002/202/06
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-207/02 P: Appeal brought on 4 June 2002 by Brugg Rohrsysteme GmbH against the judgment delivered on 20 March 2002 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-15/99 between Brugg Rohrsysteme GmbH and the Commission of the European Communities

24.8.2002               EN                     Official Journal of the European Communities                                        C 202/5
Infringement of the principles of legitimate expectations and             The appellant claims that the Court should:
of non-retroactivity: the Court of First Instance erred in law in
considering that the discretion of the Commission to set fines
and its right ‘to raise the general level of fines’ take precedence
                                                                          1.    At the same time as setting aside the judgment at first
over Article 7 of the European Convention of Human Rights
                                                                                instance of 20 March 2002, set aside Article 1 of the
and Fundamental Freedoms, as introduced in EC law by
                                                                                Commission Decisions of 21 October 1998 (Com(1998)
Article 49 of the Charter of Fundamental Rights of the
                                                                                3117 fin.) and 6 November 1998 (Com(1098) 3415 fin.
European Union. The Appellant was entitled to rely on the
                                                                                and Com(1998) 3117 fin. corrig.) (2) to the extent to
Commission’s practice on the setting of fines applicable at the
                                                                                which the appellant is therein accused of participating in
time when it approached the Commission. Moreover, a right
                                                                                an agreement and in the conduct of concerted practices
to increase the general level of fines within the prescribed
                                                                                against Powerpipe AB; annul Article 3 of those Com-
ceiling cannot be compared with the adoption in casu of a true
                                                                                mission decisions. In the alternative the appellant seeks a
quasi-legislation in the form of guidelines and notices which
                                                                                reduction, as the Court deems fit, of the fine imposed on
alter entirely the whole method of setting the fines.
                                                                                it in Article 3.
Insufficient regard to mitigating circumstances                           2.    Order the Commission to pay the appellant’s costs at first
                                                                                instance and on appeal.
Incorrect application of the Leniency Notice
(1) OJ C 86, 27.03.1999, p. 31.
(2) EEC Council: Regulation No 17: First Regulation implementing
    Articles 85 and 86 of the Treaty (OJ L 13, 21.02.1962, p. 204         Pleas and main arguments
    [SE SER1 (59-62) p. 87]).
                                                                          —     Infringements of the prohibition of retroactive effect, the
                                                                                principle of protection of legitimate expectations and the
                                                                                principle of sound administration in the setting of fines:
                                                                                the retroactive application of the ‘guidelines’ leads in the
                                                                                appellant’s case more or less to a trebling of the fine in
                                                                                consequence not of an individual assessment but of a
                                                                                regulation operating in the nature of a penalty.
Appeal brought on 4 June 2002 by Brugg Rohrsysteme                        —     Infringement of the principle of protection of legitimate
GmbH against the judgment delivered on 20 March 2002                            expectations as a result of the alteration of the method
by the Fourth Chamber of the Court of First Instance of                         for setting fines after cooperation with the appellant. An
the European Communities in Case T-15/99 between                                undertaking which cooperates has a legitimate expec-
Brugg Rohrsysteme GmbH and the Commission of the                                tation that the Commission will not subsequently alter
                     European Communities                                       the principles determining the calculation of fines in such
                                                                                a way that cooperation is in the end to no avail.
                         (Case C-207/02 P)
                                                                          —     Infringement of the rights of the defence as a result of
                          (2002/C 202/06)                                       application of the new guidelines on setting fines without
                                                                                affording the appellant the right to be heard.
                                                                          —     Infringement of the principle of equal treatment by failure
An appeal against the judgment delivered on 20 March 2002                       to reduce the starting amount for setting the appellant’s
by the Fourth Chamber of the Court of First Instance of the                     fine: the Court and the Commission are mistaken as to
European Communities in Case T-15/99 between Brugg                              the scope and significance of the 10 percent limit in
Rohrsysteme GmbH and the Commission of the European                             Article 15(2) of Regulation No 17. It is not only the final
Communities (1) was brought before the Court of Justice of the                  amount of the calculation which is decisive: rather in the
European Communities on 4 June 2002 by Brugg Rohrsysteme                        course of the calculation no amount may exceed the 10 %
GmbH, represented by Dr Thomas Jestaedt, Prof. Dr Hans-                         limit. On account of the ratio of 5 to 1 (which is not
Joachim Salger and Dr Martin Sura, of the law firm, Lovells, in                 disputed) between the third and fourth categories of the
Brussels, with an address for service in Luxembourg at the                      undertakings concerned the starting amount should also
Chambers of Philippe Dupont, of Arendt & Medernach.                             have been reduced for the appellant.
 ---pagebreak--- 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.