# C_2005171EN.01002802.xml

| 9.7.2005 | EN | Official Journal of the European Union | C 171/28 |
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9.7.2005

EN

Official Journal of the European Union

C 171/28

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Action brought on 25 April 2005 by Arkema against the Commission of the European Communities

(Case T-168/05)

(2005/C 171/47)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 25 April 2005 by Arkema, having its registered office in Paris, represented by Michel Debroux, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | annul Articles 1(d), 2(c) and 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as they concern Elf Aquitaine and impose a fine on it, because of errors of law and an infringement of essential procedural requirements and, consequently, amend Article 2(c) and (d) of the decision in so far as it imposed an excessive fine on Arkema and determine a lesser amount; |
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annul Articles 1(d), 2(c) and 4(9) of Commission Decision C(2004) 4876 final of 19 January 2005, in so far as they concern Elf Aquitaine and impose a fine on it, because of errors of law and an infringement of essential procedural requirements and, consequently, amend Article 2(c) and (d) of the decision in so far as it imposed an excessive fine on Arkema and determine a lesser amount;

| — | or, in the alternative, amend Article 2(c) and (d) of the decision in so far as it imposed an excessive fine on Arkema and on Elf Aquitaine and reduce the amount of the fine; |
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or, in the alternative, amend Article 2(c) and (d) of the decision in so far as it imposed an excessive fine on Arkema and on Elf Aquitaine and reduce the amount of the fine;

| — | in both alternatives, order the Commission to pay its own costs and those of the applicant in these proceedings. |
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in both alternatives, order the Commission to pay its own costs and those of the applicant in these proceedings.

Pleas in law and main arguments

In the contested decision the Commission imposed first, on the applicant and its parent company, Elf Aquitaine SA, jointly and severally, and second, on the applicant alone, fines of EUR 45 000 000 and EUR 13 500 000 respectively for their involvement along with ten other undertakings in a cartel in the Monochloroacetic acid sector.

In support of its action the applicant submits, first, that the Commission made several errors in law in attributing the applicant's practices, the materiality and classification of which are not disputed, to Elf Aquitaine. The Commission thus misinterpreted the rules governing a parent company's liability for practices carried out by a subsidiary in making a de facto irrebuttable presumption of accountability deriving from its majority shareholding in its subsidiary and consequently, in not showing how the parent company was actually involved in the practices in question. According to the applicant, this irrebuttable presumption infringes the principle of legal and commercial autonomy of the subsidiary, the principle of personal liability for breaches of competition law and the principle of non-discrimination between undertakings on the basis of their legal organisation. Moreover, the applicant claims that the Commission did not respect the essential procedural requirements in so far as no reasons were given at all for applying the irrebuttable presumption.

de facto

Second, the applicant submits that the fine imposed was excessive, disproportionate and discriminatory. In support of this submission it pleads infringement of the proportionality principle in determining the initial amount of the fine, in determining the factor applied to make the fine a sufficient deterrent and in determining the multiplying factor based on the duration of the breach.

In the alternative, the applicant submits that should Elf Aquitaine not be exonerated, its pleas regarding infringement of the proportionality principle are still well-founded. In addition, the applicant submits that the Commission took Arkema's turnover into account twice in its method of calculation, thus imposing a double penalty for the same fact.

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