6.11.2010

Official Journal of the European Union

C 301/41

Action brought on 8 September 2010 — Sanitec Europe v Commission

(Case T-381/10)

()

2010/C 301/67

Language of the case: English

Parties

Applicants: Sanitec Europe Oy (Helsinki, Finland), (represented by: J. Killick, Barrister, I. Reynolds, Solicitor, P. Lindfelt and K. Struckmann, lawyers)

Defendant: European Commission

Form of order sought

—	Annul in whole or in part the Commission Decision No C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures;

—	Declare that the applicant bears no responsibility for anti-competitive activity in taps and, if necessary, annul the contested decision to the extent it may find the applicant (or its affiliates) so responsible;

—	Further or in the alternative, reduce the level of the fine;

—	Order the Commission to pay the costs; and

—	Make any other order as may be appropriate in the circumstances of the case.

Pleas in law and main arguments

By means of its application, the applicant seeks, pursuant to Article 263 TFEU, the annulment of Commission Decision No C(2010) 4185 final of 23 June 2010 in Case COMP/39092 — Bathroom Fittings and Fixtures, relating to a an agreement between undertakings covering the Belgian, German, French, Italian, Dutch and Austrian markets of bathroom fittings and fixtures, concerning the sale prices and the exchange of sensitive commercial information, as well as, in the alternative, the reduction of the amount of the fine imposed on it.

In support of its application, the applicant puts forward the following pleas in law:

Firstly, the Commission failed to assess or investigate the economic context and thereby failed to establish the anti-competitive object of the alleged infringements to the requisite legal standard. It was not legally entitled to presume (or equally to find) that discussions (i) between non-competitors and (ii) about a non-economic price which no market actor pays had anti-competitive object.

Secondly, the Commission would have been wrong to hold the applicant responsible for an infringement to taps given the first plea and the fact that neither the applicant nor its affiliates produce taps.

In addition, the Commission failed to establish the existence of the alleged infringement to the requisite legal standard, notably because its analysis of the evidence was erroneous in France, Italy and in relation to Keramag Keramische Werke AG in Germany, for which the applicant was held liable.

Fourthly, the Commission has not established an interest in finding an infringement in the Netherlands that was time-barred.

Furthermore, the Commission failed (i) to adequately set out the allegations in the Statement of Objections and (ii) to retain and disclose relevant and potentially exculpatory evidence. These procedural failings irretrievably harmed the applicant’s rights of defence.

As an additional plea in law, the applicant could not be held directly and individually liable for a fine of EUR 9 873 060. The Applicant was not itself found guilty of any illegal conduct. It was only liable as a parent company and as such cannot be directly and individually liable for a fine. Moreover, the possibility of direct and individual liability was not set forth in the Statement of Objections, which is a procedural irregularity that warrants annulment.

Moreover, the applicant was wrongly held jointly liable for the actions of its affiliate Keramag Keramische Werke AG. The applicant did not own all the shares of Keramag Keramische Werke AG during the relevant period and was not in a position to, and did not, exercise decisive influence over it.

At the same time, the investigation in this case was selective and arbitrary in nature given that many companies that are alleged to have participated in the supposedly illegal meetings or discussions were never prosecuted.

Finally, the fine was unjustifiably and disproportionately high, in particular due to the absence of implementation or effects on the market. The Applicant invites the Court to exercise its unlimited jurisdiction under Article 261 TFEU to reduce the fine.