5.3.2011

EN

Official Journal of the European Union

C 72/25

(Case T-9/11)

2011/C 72/42

Language of the case: English

Parties

Applicant: Air Canada (Saint Laurent, Canada) (represented by: J. Pheasant and T. Capel, Solicitors)

Defendant: European Commission

Form of order sought

—annul the decision, including Articles 2 and 3, or, in the alternative, annul parts of the decision under Article 263 TFEU;

—annul the fine or, in the alternative, reduce the amount of the fine, including a reduction of the fine to zero, under Article 261 TFEU;

—order that the Commission takes the necessary measures to comply with the judgment of the Court under Article 266 TFEU; and

—order that the Commission pays the costs incurred by Air Canada in relation to this application and all subsequent stages of these 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 applicant’s rights of defence since the Commission materially altered its case between the statement of objections and the decision and therefore based its decision on a new factual and legal assessment upon which the applicant was afforded no opportunity to be heard.

2.Second plea in law, alleging that:

—the decision is based on inadmissible evidence since the material evidence on which the Commission relies in the decision against the applicant is inadmissible;

—in retaining certain evidence against the applicant whilst considering the same or substantially similar evidence insufficient to prove an infringement against certain other addressees of the statement of objections and in failing to take account of factual corrections and clarifications by the applicant, the Commission has infringed the EU law principle of equal treatment and has failed to apply the correct standard of proof under EU law.

3.Third plea in law, alleging that there is no infringement in which the applicant participated since:

—there is no finding in Articles 2 and 3 of the operative part of the decision that the applicant has participated in the single and continuous infringement described in the statement of reasons;

—the Commission has not satisfied the relevant legal conditions under Article 101(1) TFEU and the applicable jurisprudence to attribute liability for a single and continuous infringement to the applicant;

—on the basis of the evidence which, in the light of the second plea, the Commission is legally entitled to retain for the purposes of its re-assessment of objections against the applicant, the decision does not prove any infringement by the applicant.

4.Fourth plea in law, alleging the failure to define or, alternatively, to correctly define the relevant market in breach of the applicable legal obligation established in EU jurisprudence and in particular, in breach of the principles of certainty and of proportionality.

5.Fifth plea in law, alleging that the fine should be annulled in its entirety or, in the alternative, should be significantly reduced (including to zero) on the basis of the other pleas and on the Commission’s failure to apply the EU law principle of equal treatment when assessing the level of the fine.

6.Sixth plea in law, alleging the lack of reasoning in breach of the duty to state reasons pursuant to Article 296 TFEU.