12.11.2005   

EN

Official Journal of the European Union

C 281/7

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whilst upholding the submissions made at first instance, partially set aside the judgment of the Court of First Instance of the European Communities of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03, (1) in so far as it dismissed the action in Case T-91/03 brought against the Commission's decision C(2002) 5083 final, of 17 December 2002 relating to a proceeding under Article 81 EC;

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in the alternative, reduce the fine imposed on the appellant in Article 3 of the decision of 17 December 2002 and further reduce the amount of the interest payable pending judgment and the default interest laid down in the operative part of the judgment under appeal, as appropriate;

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order the respondent to pay the entire costs of the proceedings.

1.

It is claimed that, according to the fundamental principle non bis in idem — generally applicable in the laws of the Member States and the Community and also in relation to non-member countries — in the present case, the earlier fine imposed on the appellant in the United States should have been taken into account. The absolute refusal to take account of the previous fines imposed abroad — in infringement of that principle and thus, also of the principle of material justice — is unlawful and does not fall within the discretion of the authority which made the decision or that of the Court of First Instance.

2.

No justification was given for increasing the amount of the fine by 35 % as a result of the allegation that the appellant was the sole ringleader, since the indisputable facts and the Court of First Instance's own contradictory findings do not provide a basis for so doing. Since it was not apparent from the Commission's points of complaint that it was intending to consider the appellant as the sole ringleader, the right to a fair hearing was also thereby infringed.

3.

The Court of First Instance did not clarify the appellant's objection according to which its rights of defence were irreparably infringed by the inadequate language knowledge of the members of the Commission's team working on the case, and this in spite of the appellant's substantiated submissions and offers to produce evidence.

4.

The cooperation provided by the appellant was undervalued. Given that the cooperation which it provided was worth at least as much as that of the other participants it was — by reason of the significantly smaller reduction of its fine in comparison with those of the other participants — the victim of discrimination.

5.

The fines imposed were disproportionally high since the fact that the appellant was going through a difficult period at the time of the decision was not taken into account. The Commission and the Court of First Instance could not presume that economic efficiency is generally not to be taken into account when determining the amount of a fine: they must both check whether the fine imposed is economically viable.

6.

Finally, the determination of the interest rate was also erroneous: the particularly high interest during the proceedings amounts specifically to an additional fine, for which there is no legal basis.