201808030672050962018/C 294/633422018TC29420180820EN01ENINFO_JUDICIAL20180530484921

(Case T-342/18)

Language of the case: English

Parties

Applicant: Nichicon Corporation (Kyoto, Japan) (represented by: A. Ablasser-Neuhuber, F. Neumayr, G. Fussenegger and H. Kühnert, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul Commission Decision C(2018) 1768 final of 21 March 2018 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40136 — Capacitors) in its entirety in so far as it applies to the applicant;

—in the alternative, partially annul:

a.Article 1(f) of the contested decision, finding that the applicant participated in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the electrolytic capacitors sector covering the whole EEA, which consisted of agreements and/or concerted practices that had as their object the coordination of pricing behaviour from 26 June 1998 to 31 May 2010,

b.Article 2(i) of the contested decision, imposing a fine of EUR 72901000 on the applicant, and

—reduce the fine imposed on the applicant under Article 261 TFEU and Article 31 of Council Regulation (EC) No 1/2003 (1);

—in any event, substitute its own appraisal for the Commission’s as regards the amount of the fine and reduce the fine imposed on the applicant under Article 261 TFEU and Article 31 of Council Regulation (EC) No 1/2003; and

—order the Commission to pay the costs pursuant to Article 134 of the Rules of Procedure of the General Court.

Pleas in law and main arguments

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

1.First plea in law, alleging material errors of fact

The alleged material errors of fact relate in particular to three time periods of contacts. The applicant claims that the Commission erroneously made findings of fact which are not sufficiently established. In consequence, the Commission would have wrongly assumed an infringement of Article 101 TFEU.

2.Second plea in law, alleging errors of law regarding the qualification as a single and continuous infringement, and assumption of the applicant’s liability for participation

The second plea concerns alleged errors made by the Commission both as regards the qualification of the contacts identified as a single and continuous infringement and as regards the applicant’s liability for such infringement. First, the Commission would have failed to establish to the requisite legal standard the scope of a single and continuous infringement. Secondly, the Commission would have erred in holding the applicant liable for contacts which it did not participate in. Thirdly, the Commission would have erroneously concluded that the infringement continued without interruption before 7 November 2003. Fourthly, the Commission would have erred in holding the applicant liable for continued participation in a single and continuous infringement after 10 November 2008. As a consequence, the Commission would be time-barred from imposing penalties on the applicant. Fifthly, the Commission would have erroneously considered that the applicant’s participation in a single and continuous infringement continued in spite of its explicit distancing.

3.Third plea in law, alleging a lack of jurisdiction

4.Fourth plea in law, alleging a manifest error of assessment in setting the fine

In its fourth plea, the applicant puts forward alleged manifest errors of assessment in setting the fine. First, the Commission would have violated the principle of proportionality and its guidelines on the method of setting fines by incorrectly taking the entire value of EEA sales as the basis for calculation of the fine. Secondly and thirdly, by erroneously determining both the gravity multiplier and the additional amount the Commission would have violated the principle of proportionality, the obligation to state reasons as well as the principle of ne bis in idem. Fourthly, the Commission would have breached the principle of proportionality, its obligation to state reasons and the principle of equal treatment, by allegedly failing to duly reflect in the fine the applicant’s limited participation. Further, the Commission would have violated the principle of proportionality and the guidelines on the method of setting fines by not taking into account as mitigating circumstances the applicant’s, if any, negligence and its substantially limited role and competitive conduct.

5.Fifth plea in law, alleging an infringement of essential procedural requirements

The fifth plea concerns the Commission’s alleged infringement of essential procedural requirements within the meaning of Article 263 TFEU by failing to provide Nichicon with a supplementary statement of objections, and by setting a too short period to defend itself.

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).