CELEX: C2002/202/05
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-206/02 P: Appeal brought on 3 June 2002 by LR af 1998 A/S, formerly Løgstør Rør A/S, 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-23/99 between LR af 1998 A/S, formerly Løgstør Rør A/S, and the Commission of the European Communities

C 202/4                 EN                    Official Journal of the European Communities                                       24.8.2002
—     but in any event order the Commission of the European              European Communities in case T-23/99 between LR af 1998
      Communities to pay the costs of the proceedings at first           A/S, formerly Løgstør Rør A/S, and the Commission of the
      instance and on appeal.                                            European Commuinities, was brought before the Court of
                                                                         Justice of the European Communities on 3 June 2002 by LR af
                                                                         1998 A/S, formerly Løgstør Rør A/S, established in Løgstør,
Pleas and main arguments                                                 Denmark, represented by D. Waelbroeck and H. Peytz, lawyers.
—     Infringement of substantive Community law
      —     Infringement of the business principle (equal treat-
            ment and reliance on previous decision-making                The Appellant claims that the Court should:
            practice): the Commission was not entitled to depart
            from its previous decision-making practice and to
            apply the ‘guidelines’ particularly since it promised        —     annul the contested judgment of the Court of First
            the appellant advantages for cooperation (infor-                   Instance of 20 March 2002 in Case T-23/99;
            mation concerning cooperation). By securing coop-
            eration the Commission was bound to existing
            practices in regard to the setting of fines.                 —     annul the Commission’s Decision of 21 October 1998,
                                                                               as modified by a decision of 6 November 1998 in Case
      —     Infringement of the principle of equal treatment and               IV/35.691, District Heating Pipes, fining the Appellant or
            discrimination (in relation to the duration of the                 at the very least substantially reduce the amount of the
            infringement): Whilst, according to the intendment                 fine, or in the alternative refer the case back to the Court
            and wording of the guidelines, fines are to be                     of First Instance for judgment;
            graduated in line with the duration of an infringe-
            ment, the judgment appealed against admits, in the
            appellant’s case, of a clearly greater than linear
            increase even where the reference period of one year         —     declare the Guidelines on the method of setting fines
            has been exceeded only by three months.                            pursuant to Article 15(2) of Regulation 17/62 (2) and
                                                                               Article 65(5) of the ECSC Treaty, (OJ 1998 C 9/3) illegal
      —     Infringement of the prohibition of retroactive effect              pursuant to Article 241 of the EC Treaty; and
            owing to application of the ‘guidelines’ inasmuch as,
            for the purpose of determining the fine, those
            guidelines have regard to overall turnover instead of        —     order the Commission to pay the costs.
            product turnover, as before.
—     Infringement of essential procedural requirements
      —     Infringement of the right to be heard;
      —     Infringement of the duty to provide a statement of           Pleas in law and main arguments
            reasons.
(1) KE KELIT Kunststoffwerke Gesellschaft m.b.H v Commission of
    the European Communities [2002] ECR II-0000.
                                                                         Erroneous appreciation of the criteria for setting the fine
                                                                         (infringement of Article 15(2) of Regulation 17/62 and the
                                                                         principles of proportionality and equal treatment; misapplica-
                                                                         tion or — in the alternative — illegality of the 1998
                                                                         Guidelines): the Court of First Instance cannot claim to have
                                                                         taken sufficiently account of all factors relevant to the fine in
Appeal brought on 3 June 2002 by LR af 1998 A/S,                         upholding the Commission’s calculation of the fine starting
formerly Løgstør Rør A/S, against the judgment delivered                 from a basic amount which, in the case of the Appellant, was
on 20 March 2002 by the Fourth Chamber of the Court                      set so high that adjustments for duration, aggravating, and
of First Instance of the European Communities in case                    mitigating factors, all took place or would have taken place at
T-23/99 (1) between LR af 1998 A/S, formerly Løgstør Rør                 a level high above the maximum limit of the fine (10 % of
 A/S, and the Commission of the European Communities                     world wide turnover) set out in Regulation 17/62. The entire
                                                                         method for calculation of the fine is flawed and represents a
                                                                         wrong interpretation and application of Regulation 17/62.
                         (Case C-206/02 P)
                                                                         The method results in final fines which do not reflect properly
                                                                         the relevant individual factors, and do not even reflect the
                          (2002/C 202/05)                                relative size of the basic amounts chosen by the Commission
                                                                         as adjusted for relevant factors, but instead — in the case of all
                                                                         undertakings in categories 2 and 3 — solely reflect the size
An appeal against the judgment delivered on 20 March 2002                of the undertakings’ world wide group turnover, thereby
by the Fourth Chamber of the Court of First Instance of the              attributing a disproportionate importance to this figure.
 ---pagebreak--- 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.