Case before the General Court • Case T-386/10 (Aloys F. Dornbracht GmbH & Co. KG against the European Commission) • Application for partial annulment of the Commission decision dated 23 June 2010 (COMP/39092) = Council intervention before the General Court in support of the Commission - Main contents

Document date	19-10-2010
Publication date	22-10-2010
Reference	15183/10
To	Council Legal Service COREPER I
External link	original PDF
Original document in PDF

COUNCIL OF Brussels, 19 October 2010

THE EUROPEAN UNION

15183/10

JUR 436 RC 11

INFORMATION NOTE from : Council Legal Service to : COREPER I Subject : Case before the General Court

• Case T-386/10 (Aloys F. Dornbracht GmbH & Co. KG against the European

Commission)

• Application for partial annulment of the Commission decision dated 23 June

2010 (COMP/39092) = Council intervention before the General Court in support of the Commission

• 1. 

  On 8 September 2010, Aloys F. Dornbracht GmbH & Co. KG brought an action, pursuant to Article 263(4) TFEU, against the Commission on account of its decision of 23 June 2010 1 in

case COMP/39092 - Bathroom fittings ("the Decision"). With this Decision a fine was imposed on the applicants for infringing Article 101 (1) TFEU by participating in cartels relating to bathroom fittings. The applicants request that the Decision be declared partially

void or, alternatively, that the fines imposed therein be reduced.

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• 2. 

  In this case T-386/10, the applicant raises 8 pleas in law. The seventh plea concerns Article 23 of Council Regulation N o 1/2003 i of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty 2 . By this plea the applicant claims

that Article 23 is in breach of the principle of certainty, as it does not regulate the essential elements of the determination of fines. That provision merely obliges the Commission, when fixing the fine, to have regard to the gravity and duration of the infringement, without, however, defining these concepts. The applicant concludes that Article 23 gives the

Commission a virtually unlimited discretion for the determination of fines.

• 3. 

  The applicant acknowledges that the case law of the Court of Justice has rejected the pleas of illegality raised against of the precursor provision of Article 23 of Council Regulation N o

1/2003. However, the applicant claims that the Court of Justice has done so on the basis that the case law and the Commission's practice had given the terms "gravity and duration of the infringement" a sufficiently clear content. The applicant claims that this finding is not appropriate in the case at hand, because the Commission failed to interpret the term "gravity" in Article 23 in an appropriate way with regard to the applicant and therefore reached an

unfair conclusion.

• 4. 

  Since the Applicant has called into question the legality of Council Regulation N o 1/2003 i, the

Council has to intervene in this case, in order to defend the legality of its act. In accordance with the Council's practice, the Council agents will limit their arguments to the defence of the

legality of this act and will not intervene on other points.

• 5. 

  The Director-General of the Council Legal Service has appointed Ms. Marion SIMM and Mr.

Fernando FLORINDO GIJÓN, legal advisers in the Council Legal Service, as the Council's agents in this case. The agents have presented, on behalf of the Council, an application to intervene pursuant to Article 53 and 40 of the Statute of the Court of Justice and to

Articles 115(1) and 116(2) of the Rules of Procedure of the General Court.

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