24.10.2009

Official Journal of the European Union

C 256/3

(Joined Cases C-322/07 P, C-327/07 P and C-338/07 P) (1)

(Appeals - Agreements, decisions and concerted practices - Carbonless paper - Inconsistency between the statement of objections and the contested decision - Infringement of the rights of the defence - Consequences - Distortion of the clear sense of the evidence - Participation in the infringement - Duration of the infringement - Regulation No 17 - Article 15(2) - Guidelines on the method of setting fines - Principle of equal treatment - Principle of proportionality - Obligation to state the reasons on which the decision is based - Reasonable period for duration of proceedings before the Court of First Instance)

2009/C 256/04

Languages of the case: German, French and Spanish

Parties

Appellants: Papierfabrik August Koehler AG (represented by: I. Brinker and S. Hirsbrunner, Rechtsanwälte, J. Schwarze, professeur), Bolloré SA (represented by: C. Momège and P. Gassenbach, avocats), Distribuidora Vizcaína de Papeles SL (represented by: E. Pérez Medrano and T. Díaz Utrilla, abogados)

Other party to the proceedings: Commission of the European Communities (represented by: W. Mölls and F. Castillo de la Torre, acting as Agents, H.-J. Freund, Rechtsanwalt, N. Coutrelis, avocat)

Re:

Appeal brought against the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 in Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission — Price fixing agreement in the carbonless paper sector — Infringement of rights of defence in respect of the proof that the appellant participated in the infringement committed prior to October 1993 (erroneous, insufficient and contradictory proof) — Infringement of the principles of equal treatment and proportionality in respect of the setting of the amount of the fine (since the appellant is a family business which does not have access to capital markets)

Operative part of the judgment

The Court:

1.Sets aside the judgment of the Court of First Instance of the European Communities of 26 April 2007 in Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission in so far as it concerns Bolloré SA.

2.Annuls Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) in so far as it relates to Bolloré SA.

3.Dismisses the appeals brought by Papierfabrik August Koehler AG and Distribuidora Vizcaína de Papeles SL.

4.Orders the Commission of the European Communities to pay the costs at first instance and on appeal in Case C-327/07 P.

5.Orders Papierfabrik August Koehler AG to pay the costs in Case C-322/07 P and Distribuidora Vizcaína de Papeles SL to pay the costs in Case C-338/07 P.

(1) OJ C 223, 22.9.2007.