24.11.2007   

EN

Official Journal of the European Union

C 283/22

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set aside the judgment of the Court of First Instance of 11 July 2007 in Case T-170/06;

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give final judgment in the matter by dismissing the application for annulment in Case T-170/06 as unfounded;

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order the Applicant in Case T-170/06 to pay the costs of the Commission arising from that case and from the present appeal.

The Commission considers that the judgment under appeal misinterprets Article 9 of regulation 1/2003 (1), and the way in which the principle of proportionality is applicable in the context of that provision. Secondly, the Commission submits that, when examining whether the commitment was proportionate, the judgment under appeal misapplies Article 9, errs in law as regards the interpretation of Article 82 EC, ignores the proper scope of judicial review, distorts the content of the contested decision and the factual record, and lacks reasoning at several stages.

The Commission submits that the CFI's finding as regards the alleged violation of the applicant's right to be heard lacks sufficient reasoning and remains unclear, given that the CFI provided no unequivocal explanation as to why the applicant would have been unable to prepare an ‘effective’ reply or to ‘fully’ exercise its rights. In addition, it is submitted that the CFI applied the wrong legal standard when likening the applicant to an ‘undertaking concerned’. The CFI also misinterpreted the law by assuming that the applicant should have been given the opportunity to prepare new joint commitments together with De Beers, or to comment on the outcome of the market test before De Beers submitted individual commitments. In addition, the CFI failed to examine whether the applicant actually had this opportunity after receiving the summary of the market test observations. Finally, the Commission maintains that the CFI committed an error in law by considering the applicant's first plea well founded while leaving open to what extent the alleged violation of its right to be heard actually affected the Commission's decision.