8.2.2014   

EN

Official Journal of the European Union

C 39/12

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set aside in its entirety the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 in so far as it dismisses the action and concerns the applicant;

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in the alternative, annul Article 1 of Decision C(2010) 4185 final of the defendant of 23 June 2010 in the form of the judgment under appeal in so far as it concerns the applicant;

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in the alternative, reduce appropriately the amount of the fine imposed on the applicant under Article 2 of the contested decision of the defendant of 23 June 2010;

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in the further alternative, refer the case back to the General Court for a fresh decision;

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order the defendant to pay the costs of the proceedings.

1.

The first ground of appeal complains that the findings of the General Court with regard to an alleged infringement in Austria are vitiated by errors of law. The General Court basis its judgment on findings and reasons which were not previously the object of the contested Commission decision or of objections. At the same time, the relevant assertions of the applicant are disregarded or inaccurately represented.

2.

The second ground of appeal contests the combination in law of factually and legally unrelated conduct into an allegedly single, complex and continuous infringement (‘SCCI’), which in the applicant’s view should not have legally taken place because of the lack of complementarity between the conduct that was assessed together. In the way it was used in this case, the concept of the SCCI infringes the principle of a right to a fair trial.

3.

The third ground of appeal complains of a legally deficient so-called ‘light review’ of the General Court, which did not adequately carry out its task of examination and thereby undermined the Community law guarantee of legal protection.

4.

Finally, the fourth ground of appeal complains that the confirmed fine is, in any case, disproportionate. As incriminating findings of fact were set aside in the judgment and will be set aside owing to legal errors in reasoning, an unchanged imposition of the statutory maximum penalty of 10 % of group turnover, which the General Court declared, cannot be proportionate and thus cannot be lawful. Where the findings of fact used to establish the infringement are to a large extent not valid, then, in view of glaring gaps in causality and evidence as well as the absence of attribution links, there cannot be any SCCI which covered six countries, three product groups and 10 years, but at most punctual, local infringements, which would far from justify the level of penalty imposed in this case. The facts under examination in this case are a long way from constituting a serious or by no means most serious case imaginable, a matter which the General Court — in gross disregard of the discretionary criteria which it had to interpret — did not consider.