26.11.2011

Official Journal of the European Union

C 347/15

—

(Case C-489/11 P)

2011/C 347/24

Language of the case: English

Parties

Appellant: Mitsubishi Electric Corp. (represented by: R. Denton, Solicitor, J. J Vyavaharkar, Solicitor, K. Haegeman, avocat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—Set aside the judgment insofar as it dismisses Melco's application before the General Court,

—Annul those articles of the decision which have not already been annulled by the judgment, to the extent that they apply to Melco and to TMT&D for the period for which Melco shares joint and several liability with Toshiba for the activities of TMT&D,

—In any event, order that the Commission pays its own costs and Melco's costs in connection with these proceedings and those before the General Court.

Pleas in law and main arguments

The appellant submits that the General Court has made significant legal errors in assessing the evidence regarding the existence of the alleged ‘common understanding’:

—The General Court distorts the information in relation to the existence of the ‘common understanding’.

—The General Court has failed to apply the correct standard for review of evidence and misapplied the case law principle that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable.

—The General Court has misapplied the case law on standard and weighting of evidence in concluding that Mr. M's statement is credible and of probative value.

—The General Court misapplies the law on corroboration to Fuji's reply to the Statement of Objections.

—The General Court has failed to consider the overall effect of the individual breaches by the Commission of Melco's rights of defence and right to a fair hearing.

—The General Court has breached Melco's rights of defence, in particular the presumption of innocence, by requiring Melco to prove a negative to show that it did not commit an infringement.

—The General Court has breached the presumption of innocence and misapplied legal principles by refusing to consider the alternative plausible explanation.

The appellant also submits that the General Court has made serious legal errors in assessing the purported duration of the alleged infringement:

—The General Court has failed to prove the purported duration of the alleged infringement to the requisite legal standard.

—