# C_2008301EN.01005201.xml

| 22.11.2008 | EN | Official Journal of the European Union | C 301/52 |
| --- | --- | --- | --- |

22.11.2008

EN

Official Journal of the European Union

C 301/52

---

Action brought on 20 September 2008 — Fluorsid and Minmet v Commission

(Case T-404/08)

(2008/C 301/88)

Language of the case: Italian

Parties

Applicants: Fluorsid SpA (Assemini, Italy) and Minmet Co. (Lausanne, Switzerland) (represented by: L. Vasques and F. Perego, lawyers)

Applicants:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annulment of the decision of the Commission of the European Communities adopted on 25 June 2008 C(2008) 3043 concerning proceedings pursuant to Article 81 of the EC Treaty and Article 53 of the EAA Agreement, Case COMP/39.180 — Aluminium fluoride, notified to Fluorsid and Minmet on 11 July 2008 and 9 July 2008 respectively, or, in the alternative, for reduction of the fine imposed on Minmet and Fluorsid under the decision as provided for in Article 4482) of the Rules of Procedure of the Court. |
| --- | --- |

—

annulment of the decision of the Commission of the European Communities adopted on 25 June 2008 C(2008) 3043 concerning proceedings pursuant to Article 81 of the EC Treaty and Article 53 of the EAA Agreement, Case COMP/39.180 — Aluminium fluoride, notified to Fluorsid and Minmet on 11 July 2008 and 9 July 2008 respectively, or, in the alternative, for reduction of the fine imposed on Minmet and Fluorsid under the decision as provided for in Article 4482) of the Rules of Procedure of the Court.

Pleas in law and main arguments

By its present action, the companies Fluorsid and Minmet wish to challenge the decision by which the European Commission found an infringement of Article 81(1) of the Treaty and Article 53(1) of the EAA Agreement and therefore jointly and severally fined Fluorsid and Minmet for an alleged serious infringement of Article 81 of the Treaty for the sum of EUR 1 600 000 (one million six hundred thousand).

In support of their claims, the applicants plead:

| — | Absence of proof of the potential harm in the EAA and infringement of the provisions of Article 81 of the Treaty. In that respect it is stated that it is impossible to argue that four small undertakings, of which one has not even had sales in 2000 in the EAA, can, even in the abstract, impose prices on large aluminium producers (also called ‘smelters’) in a market in which it is supply and not demand which determines prices. |
| --- | --- |

—

Absence of proof of the potential harm in the EAA and infringement of the provisions of Article 81 of the Treaty. In that respect it is stated that it is impossible to argue that four small undertakings, of which one has not even had sales in 2000 in the EAA, can, even in the abstract, impose prices on large aluminium producers (also called ‘smelters’) in a market in which it is supply and not demand which determines prices.

| — | Infringement of the duty to state reasons regarding the proof of the unlawful conduct in breach of Article 253 of the Treaty and Article 2 of Regulation (EC) No 1/2003, for changing in a surreptitious manner the contested infringement in order to lessen the Commission's burden of proof. It claims on that point that the Commission was able to acquire evidence of an exchange of information between competitors, but not of an agreement with an object to restrict competition. That change of the description of the unlawful conduct favoured the Commission, which was then able to refer, in the applicants' view incorrectly, the per se rule laid down for hard core restrictions, therefore lightening its burden of proof and enabling it to disregard the fact that the alleged unlawful conduct had no effect on the market. |
| --- | --- |

—

Infringement of the duty to state reasons regarding the proof of the unlawful conduct in breach of Article 253 of the Treaty and Article 2 of Regulation (EC) No 1/2003, for changing in a surreptitious manner the contested infringement in order to lessen the Commission's burden of proof. It claims on that point that the Commission was able to acquire evidence of an exchange of information between competitors, but not of an agreement with an object to restrict competition. That change of the description of the unlawful conduct favoured the Commission, which was then able to refer, in the applicants' view incorrectly, the per se rule laid down for hard core restrictions, therefore lightening its burden of proof and enabling it to disregard the fact that the alleged unlawful conduct had no effect on the market.

| — | Infringement of Article 27 of Regulation No 1/2003 and of the rights of the defence, as well as of Articles 253 and 173 of the Treaty in so far as the Commission does not cite leniency in respect of Floursid under the Statement of Objections (SO), carried out investigations and acquired documentation for the case-file after the SO, and in the final decision challenged unlawful conduct which was different from that challenged in the SO (uninterrupted infringement and infringement lasting 6 months). |
| --- | --- |

—

Infringement of Article 27 of Regulation No 1/2003 and of the rights of the defence, as well as of Articles 253 and 173 of the Treaty in so far as the Commission does not cite leniency in respect of Floursid under the Statement of Objections (SO), carried out investigations and acquired documentation for the case-file after the SO, and in the final decision challenged unlawful conduct which was different from that challenged in the SO (uninterrupted infringement and infringement lasting 6 months).

The applicants also plead that:

| — | To substantiate Minmet's involvement, documents against the applicants which were not cited in the SO were referred to in the final decision. |
| --- | --- |

—

To substantiate Minmet's involvement, documents against the applicants which were not cited in the SO were referred to in the final decision.

| — | Although the Commission disregarded leniency in respect of Fluorsid in the SO in breach of the rights of the defence, in the second instance it inserted in the case-file both leniency in respect of the applicants and an addendum to the leniency issue lodged after the SO. In that manner the Commission (i) created uncertainty regarding leniency, detrimental to the time frame and substance of the applicants' rights of defence in breach of the rules set out in point 29 of the Commission Notice on immunity from fines and (ii) continued to carry out investigations after the SO, adding documentation to the file, thereby infringing fundamental procedural rules detrimental to all the parties to the proceedings. |
| --- | --- |

—

Although the Commission disregarded leniency in respect of Fluorsid in the SO in breach of the rights of the defence, in the second instance it inserted in the case-file both leniency in respect of the applicants and an addendum to the leniency issue lodged after the SO. In that manner the Commission (i) created uncertainty regarding leniency, detrimental to the time frame and substance of the applicants' rights of defence in breach of the rules set out in point 29 of the Commission Notice on immunity from fines and (ii) continued to carry out investigations after the SO, adding documentation to the file, thereby infringing fundamental procedural rules detrimental to all the parties to the proceedings.

| — | The Commission defined the geographic market of aluminium fluoride in an inconsistent manner without stating satisfactory reasons and quantified the value of the market completely inconsistently. |
| --- | --- |

—

The Commission defined the geographic market of aluminium fluoride in an inconsistent manner without stating satisfactory reasons and quantified the value of the market completely inconsistently.

---