22.4.2006

Official Journal of the European Union

C 96/26

(Case T-66/06)

(2006/C 96/44)

Language of the case: German

Parties

Applicant: JM Gesellschaft für industrielle Beteiligungen mbH & Co. KGaA (Worms, Germany) (represented by: H.-J. Hellmann, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—annul the defendant's decision of 30 November 2005 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case C(2005) 4635 final, COMP/F/38.354 — Industrial bags), served on the applicant on 14 December 2005, in so far as it concerns the latter;

—in the alternative, reduce the fine imposed jointly and severally on the applicant;

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

Pleas in law and main arguments

The applicant challenges Commission Decision C(2005) 4634 final of 30 November 2005 in Case COMP/F/38.354 — Industrial bags. In the contested decision a fine was imposed jointly and severally on RKW AG Rheinische Kunststoffwerke (RKW) and the applicant for infringement of Article 81 EC. According to the Commission, they participated in a complex of agreements and concerted practices in the industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands.

In support of its action the applicant submits that the contested decision infringes the duty of administrative authorities to comply strictly with the law. The defendant held the applicant jointly and severally liable with RKW without a legal basis or enabling act permitting it to do so.

In addition, the applicant complains that it was also held liable for RKW's infringement. The conditions developed by the Court of Justice for such liability were not satisfied. Further, the applicant claims that, in holding it liable for RKW's infringement, the duty of administrative authorities to comply strictly with the law has been infringed since the defendant's method of levying fines does not fall within the scope of the enabling provision, namely Article 15(2) of Regulation No 17 (1). In that regard, the applicant also claims that the principles of equal treatment and proportionality have been infringed.

In addition, the applicant complains that Article 15(2) of Regulation No 17 and the guidelines on fixing fines have been misapplied. In particular, the submission and evaluation of the evidence in relation to RKW was irregular. Furthermore, in view of previous administrative practice RKW was disproportionately fined. As regards the amount of the initial sum for the gravity of the infringement, the applicant alleges that RKW was treated unequally, in several respects, in relation to the other parties to which the contested decision was also addressed. In addition, the applicant claims that the Commission erred in law with regard to the assessment of the duration of the infringement and did not take mitigating circumstances into account in respect of RKW. Finally, the applicant submits that Article 15(2) of Regulation No 17 has also been infringed as the fine was wrongly fixed in relation to RKW in the light of the application of the Notice on the non-imposition or reduction of fines.

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(1) Council Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).