Official Journal of the European Union

C 114/28

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(Case C-90/13 P)

2013/C 114/43

Language of the case: English

Parties

Appellant: 1. garantovaná a.s. (represented by: B. Hartnett, Barrister, O. Geiss, Rechtsanwalt, P. Lasok QC, J. Holmes, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—set aside the General Court’s decision of 12 December 2012 in Case T-392/09 as it relates to the second pleas in the Appellant’s Application before the General Court;

—uphold that plea as well-founded;

—reduce the level of the fine to EUR 2.1 million, representing 10 % of the Appellant’s turnover in 2008 as recoded at paragraph 84 of the Contested Judgment; and

—order the Commission to pay the Appellant’s costs.

Pleas in law and main arguments

The appellant submits that the General Court erred in dismissing the appellant’s second plea in law.

Article 23(2) of regulation No. 1/2003 provides: ‘…the fine shall not exceed 10 % of its [the undertaking in question] turnover in the preceding business year’. The ‘preceding business year’ is the last full business year immediately preceding the date of adoption of the Commission decision finding that there has been an infringement of the competition rules and imposing a fine.

In the present case the ‘turnover in the preceding business year’ was that for 2008, not the turnover taken into account by the Commission. The effect of using the turnover for 2007 was to inflate the fine imposed on Garantovaná to just under 100 % of its turnover in the business year preceding the date of adoption of the Commission decision (22 July 2009).

The appellant submits that the Commission’s use of the 2007 turnover was contrary to the clear wording and purpose of article 23(2) and unlawful. As claimed in Garantovaná’s second plea in law in the proceedings before the General Court, the fine should therefore be reduced either in compliance with Article 23(2) or in the exercise of the Court’s unlimited jurisdiction under article 261 TFUE and article 31 of regulation no 1/2003.

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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 L 1, p. 1

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