Judgment_paragraph 171 · JCB Service v Commission of the European Communities (T-67/01)

171JCB Service submits that the fine is disproportionate, especially in comparison with the fines imposed under the same procedure on undertakings like Volkswagen and Opel (Commission Decision 98/273/EC of 28 January 1998 relating to a proceeding under Article [81] of the EC Treaty (Case IV/35.733 — VW) (OJ 1998 L 124, p. 60), and Commission Decision 2001/146/EC of 20 September 2000 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/36.653 — Opel) (OJ 2001 L 59, p. 1)). It alleges that the Commission exaggerated the gravity of the infringement and did not take account of the actual effect of the practices complained of in the light of JCB's position on the national markets in question or investigate the extent to which restrictions were actually implemented. It distorted the facts so as to extend the duration of the infringements without taking account of their varying intensity over time while the five elements of the infringement identified by the contested decision were present at the same time only for five years at most. The Commission did not take account of mitigating circumstances such as the individual exemption granted by the Irish Competition Authority for its exclusive distribution agreement in Ireland or the favourable judgment of the Cour d'appel de Paris of 8 April 1998, in the litigation between its French subsidiary, JCB SA, and the complainant, Central Parts.