24.3.2012

Official Journal of the European Union

C 89/15

—

(Case C-35/12 P)

2012/C 89/24

Language of the case: Spanish

Parties

Appellant: Plásticos Españoles, S.A. (ASPLA) (represented by: E. Garayar Gutiérrez and M. Troncoso Ferrer, abogados)

Other party to the proceedings: European Commission

Form of order sought

—Declare the present appeal admissible.

—Set aside the judgment of the General Court of the European Union of 16 November 2011 in Case T-76/06 ASPLA v Commission

—Alternatively, substantially reduce the amount of the fine imposed by the Commission and upheld by the General Court of the European Union, while having regard to the requirements of the principles of proportionality, equal treatment and non-discrimination.

—Order the Commission to pay the costs of both sets of proceedings.

Grounds of appeal and main arguments

1.First ground of appeal: (i) infringement of Article 101 of the Treaty on the Functioning of the European Union (TFEU) and of the case-law of the Court of Justice on that provision and on the concept of a ‘single and continuous’ infringement and (ii) infringement of the rules of procedure in relation to the burden of proof and the taking of evidence. The judgment under appeal contains errors of assessment concerning the evidence adduced by the Commission for the purposes of applying the concept of a single and continuous infringement to ASPLA, both in terms of (i) ASPLA’s alleged participation in the infringements in the open mouth bags and block bags sectors and (ii) ASPLA’s knowledge of the unlawful conduct in sub-groups in which it did not participate and of whether such conduct formed part of a ‘general collusive scheme’.

2.Second ground of appeal: the General Court erred in law in finding that ASPLA was out of time in advancing the argument that incorrect sales figures were used when the financial penalty imposed on it was being determined. Alternatively, that argument directly concerns a matter of public policy which on account of the General Court’s lack of assessment also amounts to an error of law. As regards the main plea, the appellant submits that the General Court’s error lies in the fact that the argument in question is not a new plea in law but rather supplements an existing one, and also in the fact that the sales figures for the Grupo Armando Álvares were used in preference to those for ASPLA in order to calculate the penalty. As regards the alternative plea, the appellant submits that the General Court erred in law by failing to assess properly the scope of the Commission’s duty to give reasons regarding the method of calculating the basic amount of the fine imposed on ASPLA.

—