28.7.2012   

EN

Official Journal of the European Union

C 227/31

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Annul Commission Decision C(2012) 2069 final of 28 March 2012 in Case COMP/39452 — Mountings for windows and window-doors — in so far as it concerns the applicant;

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in the alternative, reduce, as appropriate, the fine imposed on the applicant;

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order the defendant to pay the costs of the proceedings.

1.

First, the decision relating to the fine is erroneously based on the assumption of an infringement of Article 101 TFEU, which cannot be the case, however, since discussions took place in the full knowledge and at the request of the other party in the market.

2.

Second, the decision relating to the fine is erroneously based on the assumption that mountings other than ‘turn-and-tilt’ mountings were the subject of the discussions between the participating undertakings.

3.

Third, even if an infringement of Article 101 TFEU were to have occurred, the decision relating to the fine is in any event erroneously based on the assumption that special mountings were also affected by the anti-competitive conduct.

4.

Fourth, the assumption that the applicant participated in any anti-competitive collusion beyond the territory of the Federal Republic of Germany is also mistaken. The most that might be envisaged with regard to the applicant would be an infringement of Article 101(1) TFEU in respect of the Italian and Greek market for the year 2007.

5.

Fifth, the applicant also complains, in the alternative, further to the second to fourth pleas in law, that account was incorrectly taken, in the calculation of the fine, of turnover in respect of sliding mountings or special mountings, and of turnover not achieved in Germany. As a result of such turnover being included, the turnover established by the defendant for the purpose of establishing the basic amount was much too high. Consequently there was an infringement of Article 23(3) of Regulation No 1/2003.

6.

Sixth, the applicant also complains in the alternative of an error of assessment in the calculation of the fine, with regard to the gravity of the infringement and the level of the increase for deterrence (‘entry fee’). The percentage applied in the applicant’s case in respect of the gravity of the infringement or the increase for deterrence was excessively high. To that extent also, there has been an infringement of Article 23(3) of Regulation No 1/2003.

7.

Seventh, the applicant further complains in the alternative of an infringement of Article 23(3) of Regulation No 1/2003 on the basis of the account erroneously taken of the turnover which the applicant achieved together with other members of the cartel.

8.

Eighth, the decision is, moreover, vitiated by a grave defect in reasoning. It must therefore be annulled in its entirety on account of an infringement of Article 296 TFEU and consequential breach of the applicant’s rights of defence, irrespective of whether or not the applicant was involved in collusion contrary to Article 101 TFEU. It is not possible for the defect to be remedied during the ongoing proceedings.

9.

Ninth, the Commission erroneously proceeds on the assumption that the applicant participated in the (allegedly) anti-competitive collusion from 16 November 1999 to 3 July 2007. The complaint of a single and continuous infringement from 16 November 1999 to 3 July 2007 cannot, however, be sustained owing to an independent price increase for 2001 and the absence of agreement in respect of 2002. Thus, at most, the decision could include the period from 2003. However, in so far as it is asserted that the applicant engaged in anti-competitive conduct beyond the German market, the most that might be attributed to the applicant would be an infringement of Article 101 TFEU in 2007. The applicant therefore takes the view that there is no basis for any assumption, with regard to the applicant, of an infringement lasting seven years and seven months.