9.6.2012

Official Journal of the European Union

C 165/8

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(Case C-70/12 P)

2012/C 165/14

Language of the case: English

Parties

Appellants: Quinn Barlo Ltd, Quinn Plastics NV, Quinn Plastics GmbH (represented by: F. Wijckmans, advocaat, M. Visser, avocate)

Other party to the proceedings: European Commission

Form of order sought

The appellants respectfully request the Court of Justice:

—In main order: to set aside the Judgment of the General Court to the extent that it holds that the Appellants have infringed Article 101 TFEU and, on account hereof, has failed to annul Article 1 of the Decision in respect of the Appellants.

—In subsidiary order: to set aside the Judgment of the General Court to the extent that, in the exercise of its unlimited jurisdiction, it decreased the starting amount of the fine by only 10 % and failed to annul the Decision where it included in the calculation of the fine an increase on account of the duration of the infringement.

—In subsidiary order: to set aside the Judgment of the General Court to the extent that it fails to annul the Decision where it limited the reduction of the basic amount on account of differential treatment to 25 % and that, within the framework of its unlimited jurisdiction, the Court of Justice fixes a higher percentage which duly reflects the lack of liability of the Appellants for the cartel as it extends to PMMA moulding compounds and PMMA sanitary ware, thereby ensuring that such higher reduction is consistent with the general principle of proportionality.

—To order the Commission to pay the costs of the proceedings in accordance with Article 69(2) of the Rules of Procedure.

Pleas in law and main arguments

In support of their Application, Quinn Barlo Ltd., Quinn Plastics NV and Quinn Plastics GmbH put forward three pleas in law.

The first plea in law holds, in main order, that the General Court has incorrectly applied European Union law in finding an infringement of Article 101 TFEU and/or erred in law as to the application of Article 2 of Regulation No 1/2003. Both the Commission and the General Court have adopted the legal position that an infringement of Article 101 TFEU was proven to the requisite legal standard by means of a legal test consisting of (i) evidence of the presence of the Appellants at the four meetings and (ii) the absence of evidence of the Appellants publicly distancing themselves from the content of these meetings. In so doing, both the Commission and the General Court have disregarded objective and undisputed considerations demonstrating that the said legal test was inappropriate and in any event insufficient to arrive at a legal finding that the Appellants had infringed Article 101 TFEU. As a result, by their reliance on this test, the Commission and the General Court have not respected Article 2 of Regulation No 1/2003 and have failed to establish an infringement of Article 101 TFEU to the requisite legal standard.

The second plea in law is divided into two parts. The first part of the second plea holds, in subsidiary order, that the General Court has erred in law by failing to comply with the general principle of the presumption of innocence when correcting the Commission's assessment of the duration of the alleged infringement. On account of the general presumption of innocence, the General Court was not in a position to extend the duration of the first period of alleged participation beyond the date of the second meeting. The second part of the second plea holds, in subsidiary order, that the decision of the General Court to exercise its unlimited jurisdiction by increasing the starting amount with 10 % constitutes an error in law as such decision fails to comply with the general principles of legitimate expectations and equal treatment. In the context of both parts of the second plea in law, the General Court has infringed Article 23(3) of Regulation No 1/2003.

The third plea in law holds, in subsidiary order, that the General Court has erred in law by upholding the reduction of 25 % to the basic amount and not granting a further reduction. In so doing, the General Court has infringed Article 23(3) of Regulation No 1/2003) and the general principle of proportionality.

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Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

OJ L 1, p. 1

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