19.11.2011

Official Journal of the European Union

C 340/13

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(Case C-511/11 P)

2011/C 340/23

Language of the case: Italian

Parties

Appellant: Polimeri Europa SpA (represented by: M. Siragusa, F.M. Moretti, L. Nascimbene, avvocati)

Other party to the proceedings: European Commission

Form of order sought

—set aside in whole or in part the judgment of the General Court in so far as it dismissed the action brought by Polimeri in Case T-59/07 and, consequently:

—set aside in whole or in part Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) (‘the Decision’); and/or

—annul, or at least reduce, the fine imposed on Polimeri by the Decision;

—in the alternative, set aside in whole or in part the judgment under appeal in so far as it dismissed the action brought by Polimeri in Case T-59/07 and refer the case back to the General Court for an adjudication on the merits in the light of the guidance with which the Court will provide it;

—order the Commission to pay the costs both of the present proceedings and of the proceedings in Case T-59/07.

Pleas in law and main arguments

The General Court made a serious error in law in its understanding of the statement of objections of 6 April 2006 and, as a consequence, based on mistaken premises its rejection of Polimeri’s third plea in law, alleging infringement of the rights of the defence arising from the divergence between the statement of objections of 6 April 2006 and the Decision as regards the manner in which liability was attributed as between Polimeri and Syndial.

The General Court misapplied the relevant Community case-law in attributing liability for the infringement to Polimeri and excluding Syndial from the list of addressees of the Decision, and failed to provide a sufficient statement of reasons for rejecting the criticisms made in this connection by Polimeri.

The General Court misapplied the relevant Community case-law in assessing Polimeri’s claims relating to the discrepancies between the statements made by various employees of the undertakings who had cooperated under the Leniency Notice in respect of certain aspects of the alleged infringement. In disregarding important exculpatory evidence, the General Court failed to conduct a full review of the evidence put forward by the Commission.

The General Court failed to point out that the Commission had made serious errors in the application of the Guidelines on the method of setting fines and in categorising as ‘very serious’ the infringement found in the Decision; it also failed to provide a sufficient statement of reasons for rejecting the criticisms made in this connection by Polimeri. The General Court failed to conduct a full review of the calculation of the amount of the fine imposed on Polimeri.

The General Court failed to point out that the Commission had made serious errors in the determination of the multiplier, giving insufficient reasons for rejecting the criticisms made in this connection by Polimeri. The General Court also failed to point out that, in determining the multiplier, the Commission had acted in breach of the principle of equal treatment; it also gave insufficient reasons for rejecting the criticisms made in that regard by Polimeri.

The General Court made a serious error in applying the relevant Community case-law for the purposes of assessing the criticisms made by Polimeri regarding the inadmissibility of certain annexes to the application initiating proceedings and failed to give sufficient reasons in that regard. In so doing, the General Court undermined the arguments put forward by Polimeri in its defence against the objections relating to the existence of the cartel and Polimeri’s participation in that cartel, and thereby failed unlawfully to carry out its duty to conduct a full review of the facts alleged by the Commission.

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