# C_2004118EN.01004303.xml

| 30.4.2004 | EN | Official Journal of the European Union | C 118/43 |
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30.4.2004

EN

Official Journal of the European Union

C 118/43

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Action brought on 16 March 2004 by AC-Treuhand AG against the Commission of the European Communities

(Case T-99/04)

(2004/C 118/96)

Language of the case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 March 2004 by AC-Treuhand AG, Zürich (Switzerland), represented by M. Karl, C. Steinle and J. Drolshammer, lawyers.

The applicant claims that the Court should:

| — | annul the decision of the Commission of the European Communities of 10 December 2003 (rectified on 7 January 2004) in Case COMP/E-2/37.857 – Organic Peroxides insofar as it relates to the applicant; |
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annul the decision of the Commission of the European Communities of 10 December 2003 (rectified on 7 January 2004) in Case COMP/E-2/37.857 – Organic Peroxides insofar as it relates to the applicant;

| — | order the Commission of the European Communities to pay the costs. |
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order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission found that the applicant and five other undertakings and groups of undertakings had infringed Article 81(1) EC by participating in a series of agreements and coordinated practices on the market for organic peroxides. A fine of EUR 1 000 was imposed on the applicant.

The applicant submits that it neither produces nor distributes organic peroxides and that it was at no time active on the market affected by the infringement. Its action is directed against the Commission's finding that it infringed Article 81 by providing services to three producers of organic peroxides. The Commission's erroneous legal assessment is based on incorrect factual allegations. The Commission adopted those false allegations without criticism because the applicant was unable to comment on them during the Commission's investigation. In doing so, the Commission infringed the applicant's rights of defence and acted in breach of the fundamental right to due process.

Moreover, the applicant states that, although the Commission imposed only a symbolic fine on it, it considers itself compelled to bring an action against the decision in order to obtain legal certainty for its business activities. In the words of the Commission, the decision sets a precedent by which the Commission enters new territory. If the decision were to become final, there would be a risk that, in future, services provided by the applicant which have thus far been lawful and which do not restrict competition would be prohibited and subject to a financial penalty.

The applicant submits further that the Commission has acted in breach of the principle of nullum crimen, nulla poena sine lege since the applicant was neither a party, as an undertaking, to the agreement restricting competition nor is it a group of undertakings. With respect to the applicant, the Commission's legal assessment is not only erroneous but also very unclear and inconsistent. The contested decision is also inconsistent with the need for clarity of measures and infringes the principle of legal certainty and the principle of the protection of legitimate expectations.

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