Action brought on 24 March 2004 by Wieland-Werke Aktiengesellschaft against the Commission of the European Communities

(Case T-116/04)

(2004/C 118/99)

Language of the Case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 24 March 2004 by Wieland-Werke Aktiengesellschaft, Ulm (Germany), represented by R. Bechtold and U. Soltész, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments:

By the contested decision the Commission found that the applicant and five other undertakings had, by their participation in a series of agreements and concerted practices in the form of price-fixing and market sharing in the industrial pipe sector, infringed Article 81(1) EC and, as from 1 January 1994, Article 53(1) of the EEA Agreement. The Commission fined the relevant undertakings.

The applicant argues that the Commission did not take into account proportionally the size of the undertakings concerned in fixing the fine. The fine imposed on the applicant was disproportionately high relative to its total turnover. That constitutes an infringement of the principle of proportionality and contravenes the Commission's own guidelines. Furthermore, that method places small and medium-sized undertakings at a disadvantage and therefore infringes the general principle of equality and the principle of imposing penalties on a case-by-case basis.

The applicant further argues that in setting the fine sufficient account was not taken of the economic significance of the infringement as the Commission did not correctly calculate market volumes. Furthermore, the increase of 10 % per year set by the Commission based on the duration of the infringement was not properly reasoned.

The applicant also argues that the Commission's method for setting fines does not satisfy the requirement of certainty necessary for the rule of law. In particular, the calculation of the basic amount, which is made entirely without reference to the individual economic circumstances of the undertaking concerned, and the economic significance of the infringement does not allow for any practical unlimited discretion on the part of the Commission. Article 15 of Regulation No 17/62 is not compatible with the requirement of certainty and thus superior Community law. Finally, the Commission, in applying the leniency notice of 1996, disadvantaged the applicant without any discernible reason relative to other undertakings.