Appeal brought on 24 February 2015 by Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH against the judgment of the General Court (Third Chamber) of 12 December 2014 in Case T-544/08 Hansen & Rosenthal KG and H & R Wax Company Vertrieb GmbH v European Commission

(Case C-90/15 P)

(2015/C 146/32)

Language of the case: German

Parties

Appellants: Hansen & Rosenthal KG, H & R Wax Company Vertrieb GmbH (represented by: J. L. Schulte, M. Dallmann and K. M. Künstner, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

Grounds of appeal and main arguments

The appellants rely on five grounds of appeal.

By their first ground of appeal, the appellants submit that the General Court has infringed the principles of the presumption of innocence and the right to a fair trial. The appellants challenge the view of the General Court that the Commission’s decision to impose the fine was correct from the outset and definitive, with the result that the appellants could contest the findings of the Commission only if they could prove beyond all reasonable doubt that the Commission’s decision was erroneous. According to the appellants, this infringes both Article 48(1) of the Charter of Fundamental Rights (‘the Charter’), in conjunction with Article 52(3) thereof and Article 6(2) of the European Convention on Human Rights (ECHR), and Article 47(2) of the Charter, in conjunction with Article 52(3) of the Charter and Article 6(1) of the ECHR.

By their second ground of appeal, the appellants submit that the General Court erred in applying Article 81 of the EC Treaty (now Article 101 TFEU). In their view, the General Court considered, in the judgment under appeal, as falling under the prohibition of agreements which distort competition conduct which does not satisfy the necessary criteria of that prohibition. In addition, the General Court considered, contrary to the rules on the burden of proof and on the assessment of the evidence, that the alleged conduct of the appellants fell under Article 81 of the EC Treaty (now Article 101 TFEU). To that extent, in several respects the General Court erred in law in that it made incorrect findings, distorted the evidence, wrongly qualified in law certain items of evidence and infringed the right of the appellants to a fair trial.

By their third ground of appeal, the appellants maintain that the General Court infringed the fundamental principles that offences must have a statutory basis and that that essential decisions require the legislature’s approval (Wesentlichkeitsvorbehalt). Since both the Court of Justice and the General Court consider that the figure of 10 % laid down in the second subparagraph of Article 23 of Regulation No 1/2003 (1) is an absolute limit rather than an indicative limit, EU law does not contain any framework for calculating the amount of fines for infringements of Article 81 of the EC Treaty (now Article 101 TFEU). However, it is for the legislature alone to establish the framework for setting fines, not the Commission.

By their fourth ground of appeal, the appellants rely on further infringements of the principle that offences must have a statutory basis and also that of non-retroactivity. The appellants also maintain that the General Court cannot, without erring in law, set a fine without a framework for calculating its amount. In addition, the appellants consider that the mere act of ensuring that the Commission followed its own guidelines constitutes a failure to exercise its discretion and thereby an infringement of Article 31 of Regulation No 1/2003. Finally, the appellants submit that the General Court infringed the principle of non-retroactivity in that it approved the application of guidelines for the setting of fines established in 2006 to conduct which had already ceased in 2005.

By their fifth and final ground of appeal, the appellants submit that the General Court infringed the principle of proportionality. According to the appellants, the General Court infringed Article 49(3) of the Charter in that it determined a coefficient of 17 % in relation to the appellants for both the severity of the infringement and the entry-fee. As a result of its error in relation to the qualification of the appellants’ conduct as an infringement of Article 81 of the EC Treaty (now Article 101 TFEU), the General Court further erred in law by miscalculating the duration of the alleged infringement.

(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 (OJ 2003 L 1, p. 1).