26.4.2008

EN

Official Journal of the European Union

C 107/35

(Case T-82/08)

(2008/C 107/59)

Language of the case: English

Parties

Applicants: Guardian Industries Corp. (Auburn Hills, United States) and Guardian Europe Sàrl (Dudelange, Luxembourg) (represented by: S. Völcker, F. Louis, A. Vallery. C. Eggers and H.-G. Kamann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—Partially annul Article 1 of the contested decision in accordance with the pleas outlined in Sections A.1 and A.2;

—reduce the amount of the fine imposed on the applicants; and

—order the Commission to bear the costs.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision No C(2007) 5791 final (Case COMP/39.165 — Flat glass), of 28 November 2007, as notified to them on 3 December 2007, by which the Commission found that the applicants, among other undertakings, had infringed Article 81 EC and Article 53 EEA by participating, from 20 April 2004 to 22 February 2005 in a complex set of agreements and/or concerted practices coveting the whole of the EEA.

According to the applicants, the contested decision should be annulled and the fine imposed on them adjusted accordingly, since it is vitiated by the following grave errors:

(i)the Commission's failure to adduce precise and consistent evidence that the applicants participated in the cartel operated by three incumbent glass producers before the 11 February 2005 meeting;

(ii)the Commission's unsubstantiated assertion that, at that meeting, the applicants entered into agreements that extended across the EEA.

In addition, the applicants ask the Court to exercise its unlimited jurisdiction to further reduce their fine. On this basis they claim, first, that without reasoning, in a departure from its own consistent position and in a clear violation of the Court's established case-law, the Commission allegedly excluded one billion euros of captive sales from the calculation of the other addressees' fines, thereby vastly overstating the applicants' market position and, second, that the Commission ignored the applicants' substantially limited passive role in the infringement compared to the other participants' long-lasting efforts to cartelise flat glass sales in Europe, and their attempts to enlist the applicants in those efforts.