(Case T-341/18)

Language of the case: English

Parties

Applicant: NEC Corporation (Tokyo, Japan) (represented by: R. Bachour, Solicitor, O. Brouwer and A. Pliego Selie, 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) insofar it finds that the applicant infringed Article 101 TFEU/Article 53 of the EEA Agreement,

—in subsidiary order, annul the contested decision insofar as it imposes a fine on the applicant, and/or

—in more subsidiary order, exercise its full jurisdiction to adjust the fine — in light of the arguments set out in grounds 1 and 2 — to a level which is in accordance with the law, the rationale of the legal concept of recidivism as an aggravating circumstance justifying an uplift of a fine and which is proportionate, and

—order the Commission to bear the costs of the proceedings.

Pleas in law and main arguments

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

1.First plea in law, alleging that the contested decision contains manifest errors in law and assessment, and lacks reasoning, when applying recidivism as an aggravating circumstance in fining NEC Corporation and that the fine imposed on NEC Corporation violates the principle of proportionality.

2.Second plea in law, alleging that the contested decision violates the rights of defence of the applicant when suggesting in Article 1 that the applicant itself participated in the identified infringement whilst this was not set out or even suggested in the statement of objections. Moreover, this finding would be wrong in law and fact, and would contain an inconsistent finding and reasoning as it allegedly acknowledges at the same time (but qualifies as irrelevant) that NEC Corporation was not aware of the infringement and holds NEC Corporation explicitly liable as parent undertaking for (allegedly) having had control over Tokin Corporation during a certain period.

3.Third plea in law, alleging that the Commission omitted to apply the same reduction to the basic amount of the fine it imposed on Tokin Corporation as the reduction applied to the basic amount it used for the fine imposed on NEC Corporation, and should moreover have applied an average sales value for setting the fine instead of relying on a non-representative sales value of the last year of the identified infringement. These shortcomings would amount to errors in the fine calculation and/or lead to a disproportionate fine (and a lack of reasoning for the first item as it is not set out in the reasoning in the contested decision why the same reduction was apparently not applied to the basic amount used for the fine imposed on NEC Corporation).