13.8.2011   

EN

Official Journal of the European Union

C 238/10

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set aside the Judgment under Appeal;

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dismiss the action before the General Court in its entirety;

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require the tree applicants to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

In the first ground of appeal it is submitted that the General Court infringed various rules on the burden of proof and procedural rules on evidence, distorted certain pieces of evidence and did not provide reasons for its factual assessment. Although the General Court recalls the case law on the need to consider the overall body of evidence, the subsequent assessment reveals a very fragmentary approach by which evidence is viewed in isolation and dismissed on a piece-by-piece basis. This affects the analysis of individual contacts, which the Decision considers as manifestations of the Aalberts undertakings' participation in the on-going infringement. Evidence on the participation of the subsidiary companies Simplex and Aquatis in the continuous infringement are assessed by the General Court in isolation, although they belonged to one and the same undertaking (Aalberts). In addition, and with regard to these contacts, the General Court distorts certain key pieces of evidence or at least does not provide sufficient reasons for its conclusions as regards the probative value of certain pieces of evidence. The second ground of appeal is an alternative plea, in that even if its factual findings were to be upheld, the General Court was wrong to annul the decision in full, insofar as it only found a partial mistake in the Decision. The Judgment under Appeal is affected by at least two errors of law:

Finally, the third ground of appeal is also in the alternative, should the Court of Justice dismiss the first and second ground of appeal, as it concerns the calculation of the fine for Simplex and Aquatis in the first period in the event the finding of an infringement in the second period would be annulled in full. The Commission submits that the annulment of Article 2(b)(2) of the Decision lacks motivation and that, if the General Court relied on the so-called 10 % cap under Article 23(2) of Regulation No 1/2003 (1), it ruled ultra petita and violated the principle of the contradictory procedure and thus the right to a fair hearing as this was not discussed during the proceedings at first instance.