Appeal lodged on 3 June 2011 by Viega GmbH & Co. KG against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-375/06, Viega GmbH & Co. KG v European Commission

(Case C-276/11 P)

2011/C 238/10

Language of the case: German

Parties

Applicant: Viega GmbH & Co. KG (represented by: J. Burrichter, T. Mäger and M. Röhrig, lawyers)

Other party to the proceedings: European Commission

Forms of order sought

Pleas in law and main arguments

This appeal is directed against the judgment of the General Court whereby the latter dismissed the action by the appellant against Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Joints).

The appellant bases its appeal on the following grounds.

The General Court infringed the appellant’s right to be heard, the principles governing the taking of evidence and the duty to state reasons for the decision given. In order to demonstrate the appellant’s participation in the cartel, the judgment under appeal relied mainly on handwritten notes of a single witness and a plea for leniency without making any mention of the appellant’s arguments on the subject of those documents. The appellant expressly cast doubt on the accuracy of those documents (the witness did not take part in the German meetings and did not speak German).

The appellant considers that the General Court should have ordered measures of inquiry in relation to the accuracy of the witness notes and the plea for leniency. By using those notes and the plea for leniency as evidence without verifying their accuracy, the General Court infringed the principles governing the taking of evidence.

The judgment under appeal infringed Article 81(1) EC inasmuch as the General Court held that the appellant had participated, on 30 April 1999, in a meeting ‘of an anti-competitive nature’. Moreover, the judgment under appeal also infringed Article 23(1) of Regulation No 1/2003 insamuch as participation at that meeting was taken into account when determining the amount of the fine. As regards that meeting, the General Court merely held that the evidence pointed ‘rather’ to an anti-competitive purpose than to a purpose in accordance with the competition rules. The General Court thus infringed the criterion for assessing evidence that it itself had fixed, which requires that the infringement be proved certainly and beyond dispute.

The appellant argues that the finding that the meeting of 30 April 1999 was of an anti-competitive nature has an effect on the amount of the fine imposed. The taking into account of that meeting served as evidence of the appellant’s participation in a pressfittings cartel. The appellant’s turnover in the pressfittings sector was thus fixed, in the context of fixing the starting amount for the calculation of the fine, at an amount 11 times higher.

As regards the taking into account of turnover in pressfittings, the judgment further showed a defect in reasoning and offended the laws of logic. The imposition of a fine of more than EUR 50 million was, in the final analysis, based solely, in paragraph 85 of the judgment under appeal, on two meetings the relation of which to pressfittings is dealt with in two half-sentences and established without any assessment of the evidence. Moreover, the General Court assumed that the appellant had participated in anti-competitive agreements concerning pressfittings at the meeting of 30 April 1999, whereas it also held that the latter’s competitors debated until June 2000 whether pressfittings (in which the appellant had a monopoly) should be the subject-matter of a cartel at all.

Finally, the judgment under appeal infringed the principle of proportionality. The Commission — with the approval of the General Court — applied the guidelines for the calculation of fines as follows: it first fixed a starting amount by taking account of the turnover for pressfittings, even though, according to the findings of the General Court itself, pressfittings could have been the subject-matter of an anti-competitive agreement only in 2000 and 2001. It then increased the starting amount by 90 % in order to reflect the alleged overall duration of the appellant’s participation in the cartel (nine years and three months). The turnover figure for pressfittings having thus been taken into account for the whole of the period and not for the last part, of one year and three months, which was the most that could be relevant, the fixing of the amount of the fine infringed the principle of proportionality.