# C_2006212EN.01004201.xml

| 2.9.2006 | EN | Official Journal of the European Union | C 212/42 |
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2.9.2006

EN

Official Journal of the European Union

C 212/42

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Action brought on 18 July 2006 — Caffaro v Commission

(Case T-192/06)

(2006/C 212/72)

Language of the case: Italian

Parties

Applicant(s): Caffaro S.r.l. (represented by: Alberto Santa Maria and Claudi Biscaretti di Rufia, lawyers,)

Applicant(s):

Defendant(s): Commission of the European Communities

Defendant(s):

Forms of order sought

| — | Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on Caffaro S.r.l., jointly and severally with SNIA S.p.A., a fine of EUR 1 078 000. |
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Annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and sodium perborate in so far as it imposes on Caffaro S.r.l., jointly and severally with SNIA S.p.A., a fine of EUR 1 078 000.

Hydrogen peroxide and sodium perborate

| — | In the alternative, reduction of the fine on Caffaro S.r.l. to a symbolic amount. |
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In the alternative, reduction of the fine on Caffaro S.r.l. to a symbolic amount.

| — | Further in the alternative, substantial reduction of the fine on Caffaro S.r.l., taking account of the short duration of the infringement and of attenuating circumstances |
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Further in the alternative, substantial reduction of the fine on Caffaro S.r.l., taking account of the short duration of the infringement and of attenuating circumstances

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

Pleas in law and main arguments

The contested decision in this case is the same as in Case T-185/06 L'air Liquide v Commission.

L'air Liquide

Commission

In support of its arguments, the applicant argues:

| — | that it should be regarded as a victim rather than a participant in the hydrogen peroxide cartel. In assessing Caffaro's position in the proceeding in question, the Commission entirely failed to take account of the fact that, far from profiting from the cartel in question, Caffaro quit the the market in sodium perborate precisely as a consequence of the unlawful agreements made on the hydrogen peroxide market. The applicant emphasised to the Commission that it manufactured only sodium perborate, that it was merely a customer for hydrogen peroxide, and that it could therefore not be a member of the hydrogen peroxide cartel but rather a victim of it. |
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that it should be regarded as a victim rather than a participant in the hydrogen peroxide cartel. In assessing Caffaro's position in the proceeding in question, the Commission entirely failed to take account of the fact that, far from profiting from the cartel in question, Caffaro quit the the market in sodium perborate precisely as a consequence of the unlawful agreements made on the hydrogen peroxide market. The applicant emphasised to the Commission that it manufactured only sodium perborate, that it was merely a customer for hydrogen peroxide, and that it could therefore not be a member of the hydrogen peroxide cartel but rather a victim of it.

| — | that the Commission made an obvious error by using for all the participants in the infringement, save the applicant, overall market shares in 1999, the last full year of the infringement concerning both products (sodium perborate and hydrogen peroxide). Surprisingly, in relation to Caffaro, the Commission used instead market data for 1998, whereas, according to settled case-law, the Commission must, for the purpose of assessing the specific weight of an undertaking, take into consideration the turnover achieved by each undertaking during the reference year. The case-law has interpreted that principle to the effect that only the use of a common reference year for all the undertakings participating in the same infringement guarantees equal treatment. |
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that the Commission made an obvious error by using for all the participants in the infringement, save the applicant, overall market shares in 1999, the last full year of the infringement concerning both products (sodium perborate and hydrogen peroxide). Surprisingly, in relation to Caffaro, the Commission used instead market data for 1998, whereas, according to settled case-law, the Commission must, for the purpose of assessing the specific weight of an undertaking, take into consideration the turnover achieved by each undertaking during the reference year. The case-law has interpreted that principle to the effect that only the use of a common reference year for all the undertakings participating in the same infringement guarantees equal treatment.

The applicant also argues:

| — | Infringement of defence rights in that, contrary to what the Commission maintains, representatives of Caffaro did not participate in the meeting in Brussels of 26 November 1998. |
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Infringement of defence rights in that, contrary to what the Commission maintains, representatives of Caffaro did not participate in the meeting in Brussels of 26 November 1998.

| — | Misapplication of Article 25 of Regulation (EC) No 1/2003, and of the time-limit contained therein, inasmuch as Caffaro ceased participation in the presumed arrangement more than five years before the commencement of the Commission's investigation in relation to Caffaro. |
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Misapplication of Article 25 of Regulation (EC) No 1/2003, and of the time-limit contained therein, inasmuch as Caffaro ceased participation in the presumed arrangement more than five years before the commencement of the Commission's investigation in relation to Caffaro.

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