23.2.2013   

EN

Official Journal of the European Union

C 55/4

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set aside the Contested Judgment;

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to either (i) annul Article 2(i) of the Contested Decision (1) insofar as it imposes a fine on the Appellants; (ii) reduce the amount of the fine imposed on the Appellants, or (iii) refer the case back to the General Court; and

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order the Commission to pay the costs of the appeal and of the proceedings before the General Court.

1.

The Contested Judgment should be annulled insofar as it imposes a fine or, in the alternative, referred back to the General Court, because the Contested Judgment is vitiated by an error of law in that the General Court misinterpreted the last paragraph of Point 23(b) of the 2002 Leniency Notice, which provides that, when a leniency applicant ‘provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel,’ the Commission may not take those facts into account when setting the fine on the leniency applicant. The General Court ruled that a fact is ‘unknown’ to the Commission only if the Commission has no knowledge whatsoever of a fact. Thus, even if the Commission only has a very general idea about the existence of a cartel and no direct evidence that will allow it to prove the facts relating to the cartel, a leniency applicant that provides such evidence will not be able to benefit from the immunity provided for in the last paragraph of Point 23(b). The Appellants submit that this interpretation of this paragraph is too narrow and wrong as a matter of law.

2.

The Contested Judgment is vitiated by an error of law in that the General Court failed to properly consider the evidence put forward by the Appellants before concluding that the value of the evidence submitted to the Commission by KPN in the context of its leniency application was diluted by intervening submissions of other parties. The General Court could not have arrived at this conclusion without examining the evidence submitted by KPN and comparing it to the evidence submitted by the other parties, which it did not even attempt to do.