(Case T-363/18)

Language of the case: English

Parties

Applicant: Nippon Chemi-Con Corporation (Tokyo, Japan) (represented by: H. Niemeyer, M. Röhrig, D. Schlichting and I. Stoicescu, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul in its entirety or in part the European Commission’s decision of 21 March 2018 relating to a proceeding under Article 101 of the TFEU and Article 53 of the EEA Agreement (AT.40136 — Capacitors);

—in the alternative, annul Article 2(g) of the European Commission’s decision of 21 March 2018;

—in the alternative, reduce the fine imposed on the applicant in Article 2(g) of the European Commission’s decision of 21 March 2018 by exercising its unlimited jurisdiction pursuant to Article 261 TFEU and Article 31 of Regulation 1/2003;

—order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

1.First plea in law, alleging an infringement of the right to be heard and of Article 41 of the Charter of Fundamental Rights

The applicant claims that the Commission infringed its right to be heard by not granting access to all the case file documents to which it referred to in the contested decision, by not providing all potentially exculpatory evidence, by failing to issue a supplementary statement of objections to remedy the shortcomings of the initial statement of objections, instead of a letter of facts and by failing to provide adequate access to minutes of meetings with the other parties.

2.Second plea in law, alleging that the Commission failed to provide precise and consistent evidence of an infringement with impact on the EEA for the entire duration of the alleged infringement

The Commission would have further failed to provide precise and consistent evidence of an infringement with impact on the EEA for the entire duration of the alleged infringement, in particular for the ECC meetings (1998-2003) and for the tri- and multilateral meetings and their impact on the EEA between 2009 and 2012.

3.Third plea in law, alleging that there was no sufficient proof of a single continuous infringement

Pursuant to the applicant, the Commission would have failed to prove the existence of a single continuous infringement comprising all types of alleged meetings with regard to all aluminium electrolytic capacitors and all tantalum electrolytic capacitors for a period of fourteen years and with an impact on the EEA, as it neither defined an overall plan pursuing a single anticompetitive economic aim to the required standard, nor proved that a complementary link existed between the different meetings.

4.Fourth plea in law, alleging that there was no infringement by object

The Commission allegedly also failed to establish that the anti-competitive conduct was an infringement by object as the supposed exchanges about future price and supply information during the meetings and contacts with a relevance to EEA sales were sporadic and very limited in scope.

5.Fifth plea in law, alleging a lack of jurisdiction of the Commission

The Commission would further have wrongly claimed jurisdiction over the alleged infringement, because it did not provide sufficient evidence linking the alleged infringement to the EEA. The Commission would have ignored proof that, in essence, none of the bi- and trilateral contacts had any effect on sales to the EEA as the contacts focused on non-European customers. The Commission would not have proven its allegations that the Japanese capacitor manufacturers attended the meetings with the purpose to reduce competition in the EEA.

6.Sixth plea in law, alleging an infringement of Article 23(2) and (3) of Regulation No 1/2003, the Commission’s Fining Guidelines and fundamental principles of the setting of fines, in particular the principles of equal treatment and proportionality

Finally, the applicant claims that the Commission infringed Article 23(2) and (3) of Regulation No 1/2003, the Commission’s Fining Guidelines and fundamental principles of the setting of fines, in particular the principles of equal treatment and proportionality by considering a disproportionate value of sales and by disregarding the alleged infringement’s limited links to the EEA.

*

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).

Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).