9.2.2008

Official Journal of the European Union

C 37/16

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(Case C-534/07 P)

(2008/C 37/21)

Language of the case: German

Parties

Appellants: William Prym GmbH & Co. KG and Prym Consumer GmbH (represented by: H.-J. Niemeyer and Ch. Hermann, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

1.To set aside the judgement of the Court of First Instance of the European Communities of 12 September 2007 in Case T-30/05, in so far as it affects the appellants,

2.To annul Commission Decision C(2004) 4221 final of 26 October 2004 (Case COMP/F-1/38.338 — PO/Needles), in so far as it affects the appellants,

In the alternative, to annul or reduce the fine imposed on the appellants by Article 2 of that decision,

3.In the alternative to the second form of order sought, to refer the case back to the Court of First Instance for judgment,

4.To order the respondents in the appeal proceedings to pay the costs of the whole proceedings.

Pleas in law and main arguments

—The Court of First Instance was wrong to conclude that the separation of the originally unified ‘hard haberdashery’ procedure into the ‘hard haberdashery: needles’ and ‘hard haberdashery: fasteners’ procedures without providing reasons for that separation did not infringe the appellants' rights of defence, in particular their right to a fair hearing.

—In refusing to determine whether the separation of the ‘haberdashery’ procedure was unlawful because the infringement at issue was a single and continuing one, the Court of First Instance contravened the principle that access to justice must not be denied and the fundamental right to judicial protection.

—The Court of First Instance was wrong to hold that there was no infringement of the duty to state reasons under Article 253 EC. It wrongly considered the inadequate analysis by the Commission of the size of the markets considered to be relevant in the case and in relation to the concrete effects of the infringement on the market to be of no legal significance.

—The Court of First Instance infringed the Guidelines on the Method of Setting Fines. It determined the gravity of the infringement by reference merely to the abstract form of the infringement and treated the lowest amount of an aggravating category as representing a minimum amount which could not be reduced. It also refused to treat the voluntary termination of the infringement as an attenuating circumstance, and in so doing infringed the principles of the rule of law and equal treatment.

—Lastly, the Court of First Instance infringed the principle of proportionality. It applied the Guidelines on the Method of Setting Fines in determining the gravity of the infringement in a manner that was equally as formalistic and one-sided to the detriment of the appellants as the respondents in these proceedings had done. In addition, it failed to undertake the simultaneous weighting of all the relevant circumstances of the case that the principle of proportionality requires, and instead merely examined the proportionality of the fine in relation to discrete criteria that were considered on their own in every case.

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