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Published by: eurolex on Nov 29, 2010
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Action brought on 7 October 2009 — Almametv Commission(Case T-410/09)
 (2009/C 312/56)
 Language of the case: English
 Parties
 Applicants:
Almamet GmbH Handel mit Spänen und Pulvern ausMetall (Ainring, Germany) (represented by: S. Hautbourg andC. Renner, lawyers)
 Defendant:
Commission of the European Communities
 Form of order sought
 — to declare the Commission Decision of 22 July 2009 (CaseCOMP/39.396) void, in so far as it concerns the applicant;— in the alternative, reduce the fine imposed by Article 2 of the decision,— to order the Commission to pay the costs.
 Pleas in law and main arguments
 The applicant seeks the partial annulment of the Commission’sdecision C(2009) 5791 final of 22 July 2009 (CaseCOMP/39.396 — Calcium carbide and magnesium basedreagents for the steel and gas industries) relating to a proceedingunder Article 81 EC and Article 53 EEA by which theCommission found that a number of suppliers of calciumcarbide and magnesium granulates engaged in market sharing,quotas and customer allocation, price fixing and exchanges of sensitive commercial information on a substantial part of theEEA market thereby infringing the aforementioned Treaty provisions (‘the contested decision’) in so far as it concernsthe applicant and, in the alternative, the reduction of the fineimposed on it by Article 2 of the contested decision.The applicant presents three pleas in law in support of itsrequest for annulment:With its first plea, the applicant submits that the Commissionviolated its rights of defence in using documents against itwhich were seized outside the scope of the Commission’sinspection decision.With its second plea, the applicant claims that the Commissionhas failed to establish to the requisite legal standard of proof theexistence of the infringement found in Article 1 of thecontested decision as far as magnesium in concerned. Theapplicant considers that even if the documents which wereillegally seized were admitted to the Commission’s file, they are fundamentally lacking precision and coherence. Accordingto the applicant’s submissions, the remainder of the evidenceconsists of an oral leniency statement which not only lacksprecision but also is a misrepresentation of certain facts andis contested by other parties. On this basis, the applicantconsiders that the burden of proof with regard to the allegedinfringement continues to lie with the Commission.With its third plea, the applicant contends that the Commissionhas committed a manifest error of assessment regarding thesingle and continuous nature of the infringement. Notably,there is no true substitutability between calcium carbide andmagnesium granulates. Moreover, the applicant claims thatthere was no common overall plan for the two productsproved by the existence of distinct meetings for each product.In the alternative, the applicant presents four further pleas insupport of its request for a reduction of the fine imposed by Article 2 of the contested decision.With its fourth plea, the applicant claims that the Commissioninfringed points 23 and 26 of the Leniency Notice (
 1
 ) inrefusing the applicant a reduction under the said notice. Theapplicant considers that the elements contained in its leniency application represent information of significant added value. Inparticular, the applicant considers that the Commission was notentitled to refuse a reduction of the fine on the sole basis thatits application did not contain any information on the allegedmagnesium infringement since this infringement is not part of the procedure.With its fifth plea, the applicant submits that the Commissioninfringed Article 81 EC and Article 23(2) of Regulation (EC) No1/2003 (
 2
 ) as well as point 32 of the Fining Guidelines (
 3
 ) by setting the final amount of the fine at a level exceeding 10 % of its last audited turnover. The applicant contends that theCommission based itself on the applicant’s
pro forma
turnoverfigures of 2008 for the purpose of calculating the amount of the fine instead of its last audited turnover for 2007. Inaddition, the applicant considers that the commission shouldhave applied the 20 % reduction based on point 37 of theFining Guidelines after the calculation of 10 % legal maximum.With its sixth plea, the applicant submits that the Commissioninfringed the principle of proportionality in fixing an excessiveamount of the fine as far as it is concerned. The applicantclaims that imposing a fine of an amount that results in anegative book value or reduces a company’s book value tozero is manifestly disproportionate. In addition, the fineimposed exceeds the financial capacity of a dealer like theapplicant which is operating with very high-value productsand very low profit margins. Finally, the applicant considersthat the reduction of 20 % applied by the Commission doesnot sufficiently take into account the applicant’s specificsituation explicitly acknowledged by the Commission, stillleaving the fine at a disproportionate level.With its seventh plea, the applicant submits that theCommission committed a manifest error of appraisal inconsidering that is did not meet the conditions of point 35of the Fining Guidelines. The applicant considers that the
EN
 C 312/34 Official Journal of the European Union 19.12.2009

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