Action brought on 2 October 2009 — 1. garantovaná v Commission

(Case T-392/09)

2009/C 297/37

Language of the case: English

Parties

Applicant: 1. garantovaná a.s. (Bratislava, Slovak Republic) (represented by: M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By means of its application, the applicant seeks the partial annulment of Commission’s Decision C (2009) 5791 final of 22 July 2009, finding the existence of a cartel in the calcium carbide and magnesium sectors, giving rise to an infringement of Article 81 EC for which the applicant was held liable jointly and severally, with the company Novácke chemické závody a.s. (“NCHZ”).

The application is based on two broad submissions.

First, the applicant submits that the Commission erred in law and in fact in imputing NCHZ’s conduct to the applicant, both by unlawfully reversing the burden of proof onto the applicant and by failing to discharge the burden of proof itself. The applicant claims that the Commission wrongly applied the presumption applicable to parents with wholly-owned subsidiaries to the applicant, which was a majority shareholder in a company that was directly involved in a competition law infringement. In any event, the applicant contends that the Commission failed to show that the applicant actually and effectively exercised decisive influence over NCHZ during the period of the infringement.

Second, and in the alternative, should the Court uphold the attribution of liability to the applicant, the latter seeks a reduction of the fine imposed on it, jointly and severally with NCHZ, pursuant to the Court’s unlimited jurisdiction under Article 229 EC read in conjunction with Article 31 of Regulation (EC) No 1/2003 (1), on the basis that the Commission incorrectly applied the 10 % turnover limit contained in Article 23 of Regulation (EC) No 1/2003. According to the applicant, the Commission manifestly erred in using the 2007 as the reference year for calculating the 10 % turnover limit, instead of 2008.

In addition, the applicant claims that the Commission’s decision to depart from the general rule contained in Article 23(2) of Regulation (EC) No 1/2003 amounts to a breach of an essential procedural requirement, since the Commission had a duty to respect the applicant’s right to be heard before doing so.

Moreover, the applicant submits that the contested decision is vitiated by Commission’s failure to state reasons for departing from the general rule of taking the preceding business year in order to calculate the 10 % turnover limit.

In respect of the level of the fine, the applicant claims that it is disproportionate in relation to the legitimate objective pursued, namely, to ensure competition in the internal market is not distorted. According to the applicant, the level of the fine will reduce the number of competitors and reinforce the market strength of the major company, Akzo Nobel, running thus counter to the objective enshrined in Article 3 EC.

Finally, the applicant claims that the Commission erred in failing to take account of its own Guidelines (2) with respect to the applicant’s ability to pay the fine. The applicant submits, in particular, that the rejection of its submissions on its inability to pay is vitiated by the fact that it is insufficiently reasoned and is manifestly unreasonable, since the Commission allegedly failed to take into account of the objective evidence that was provided to it, that imposition of the fine would irretrievably jeopardise the economic viability of the applicant and cause its assets to lose all their value.

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1)

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ C 210, p. 2)