# C_2009044EN.01004702.xml

| 21.2.2009 | EN | Official Journal of the European Union | C 44/47 |
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21.2.2009

EN

Official Journal of the European Union

C 44/47

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Action brought on 19 September 2008 — ICF v Commission

(Case T-406/08)

(2009/C 44/83)

Language of the case: French

Parties

Applicant: Industries Chimiques du Fluor SA (ICF) (Tunis, Tunisia) (represented by M. van der Woude and T. Hennen, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the decision in so far as it concerns the applicant; |
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annul the decision in so far as it concerns the applicant;

| — | in the alternative, reduce substantially the fine imposed on the applicant; |
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in the alternative, reduce substantially the fine imposed on the applicant;

| — | order the Commission to pay the costs. |
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order the Commission to pay the costs.

Pleas in law and main arguments

By this application the applicant seeks the annulment in part of Commission Decision C(2008) 3043 final of 25 June 2008 in Case COMP/39.180 — Aluminium fluoride, by which the Commission found that certain undertakings including the applicant had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by agreeing, on the world market in aluminium fluoride, on a target price increase, by examining various regions of the world including Europe to establish a general price level and in some cases to agree on a division of the market, and by exchanging commercially sensitive information.

In support of its application, the applicant puts forward four pleas in law:

| — | infringement of the rights of the defence and Article 27 of Regulation No 1/2003 (1), in that the infringement described in the statement of objections differed from that eventually established in the contested decision and the contested decision was based on documents not mentioned in the statement of objections; |
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infringement of the rights of the defence and Article 27 of Regulation No 1/2003 (1), in that the infringement described in the statement of objections differed from that eventually established in the contested decision and the contested decision was based on documents not mentioned in the statement of objections;

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| — | infringement of Article 81 EC, as the contested decision made an incorrect legal classification of the acts the applicant was accused of, by wrongly classifying a fortuitous exchange of information as an agreement and/or a concerted practice within the meaning of Article 81(1) EC. Moreover, the disputed acts could not in any event, according to the applicant, be classified as a single continuous infringement; |
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infringement of Article 81 EC, as the contested decision made an incorrect legal classification of the acts the applicant was accused of, by wrongly classifying a fortuitous exchange of information as an agreement and/or a concerted practice within the meaning of Article 81(1) EC. Moreover, the disputed acts could not in any event, according to the applicant, be classified as a single continuous infringement;

| — | infringement of Article 23 of Regulation No 1/2003 and the principle of protection of legitimate expectations in fixing the amount of the fine, in that the Commission misapplied the guidelines for calculating fines by (i) not using an audited figure for turnover and (ii) omitting to estimate the total value of sales of goods or services in connection with the infringement in the geographical sector. Moreover, the Commission erred in its classification of the facts. Finally, the applicant puts forward, in support of its claim for a reduction of the fine, the small part of the aggregate market share of the parties to the agreement and the lack of implementation; |
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infringement of Article 23 of Regulation No 1/2003 and the principle of protection of legitimate expectations in fixing the amount of the fine, in that the Commission misapplied the guidelines for calculating fines by (i) not using an audited figure for turnover and (ii) omitting to estimate the total value of sales of goods or services in connection with the infringement in the geographical sector. Moreover, the Commission erred in its classification of the facts. Finally, the applicant puts forward, in support of its claim for a reduction of the fine, the small part of the aggregate market share of the parties to the agreement and the lack of implementation;

| — | infringement of the Euro-Mediterranean Agreement with Tunisia (2), on the ground that the Commission applied the Community competition rules exclusively, although the competition rules of the Euro-Mediterranean Agreement were applicable, albeit in parallel to the Community competition rules. According to the applicant, the Commission should have consulted the EU/Tunisia Association Committee, as required by Article 36 of the Agreement. The applicant further submits that the unilateral approach taken by the Commission is contrary to the principle of international comity and to its duty of care. |
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infringement of the Euro-Mediterranean Agreement with Tunisia (2), on the ground that the Commission applied the Community competition rules exclusively, although the competition rules of the Euro-Mediterranean Agreement were applicable, albeit in parallel to the Community competition rules. According to the applicant, the Commission should have consulted the EU/Tunisia Association Committee, as required by Article 36 of the Agreement. The applicant further submits that the unilateral approach taken by the Commission is contrary to the principle of international comity and to its duty of care.

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(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

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(2)  Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (OJ 1998 L 97, p. 2).

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