Appeal brought on 1 March 2010 by Solvay SA against the judgment delivered by the General Court (Sixth Chamber) on 17 December 2009 in Case T-57/01 Solvay v Commission

(Case C-109/10 P)

(2010/C 161/21)

Language of the case: French

Parties

Appellant: Solvay SA (represented by: P.-A. Foriers, R. Jafferali, F. Louis, A. Vallery, avocats)

Other party to the proceedings: European Commission

Form of order sought

— Set aside the judgment delivered on 17 December 2009;

— therefore, re-examine the action in respect of the points that were annulled and annul the Commission’s decision of 13 December 2000, in its entirety or in part, in accordance with the pleas submitted;

— cancel the fine of EUR 19 million or, failing that, reduce that fine by a very substantial amount in order to compensate the appellant for the serious damage it suffered on account of the extraordinary length of the proceedings;

— order the Commission to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court.

Pleas in law and main arguments

The applicant puts forward nine pleas in support of its appeal.

By its first plea, which consists of five parts, the appellant submits that there has been an infringement of the right to be tried within a reasonable time in so far as Commission Decision 2003/6/EC of 13 December 2000 (1) was adopted more than ten years after the beginning of the investigation or, at least, after the opening of the procedure through notification to the appellant of the Commission’s statement of objections. In particular, Solvay criticises that the General Court (i) did not undertake a comprehensive assessment of the duration, including both the administrative and the judicial phase of proceedings (first part), (ii) did not take into account the duration of proceedings before the General Court (second part), (iii) made sanctions for exceeding a reasonable time subject to proof of concrete infringement of the appellant’s procedural rights even though the two principles are separate and distinct (third part), (iv) found that no such infringement existed in the present case (fourth part), (v) misinterpreted the facts of the case in that the General Court took the view that the appellant waived its right to seek, by way of an alternative plea, a reduction in the fine because the reasonable time was exceeded (fifth part), even though the appellant expressly sought the cancellation or, at least, a reduction of the fine on those grounds.

By its second plea, which consists of three parts, Solvay submits that there has been an infringement of Articles 14 and 20 of Council Regulation 17/62 (2) in so far as the General Court approved the Commission’s use, in the context of the procedure initiated on the basis of Article 102 TFEU, of documents that were seized in the course of inspections concerning the possible participation in agreements and/or concerted practices under Article 101 TFEU (first part). The appellant also criticises the General Court for letting the Commission use against the appellant documents that it collected by coincidence, even though the Commission would not have been able, at the time, to undertake an investigation for the purposes of collecting those documents without raising suspicion (second part). Finally, the appellant criticises the General Court for misinterpreting the facts of the case by finding that there was substantial similarity between the facts that the decision ordering the investigation sought to examine and those on the grounds of which the appellant was found guilty.

By its third plea, which consists of six parts, the appellant claims that the General Court infringed its procedural rights in so far as it required the appellant to show that the documents which the Commission lost could have been useful for its defence (first part). Indeed, it cannot be automatically ruled out, without some sort of provisional examination of the file, that the documents in question might have influenced the Commission’s decision (second and third part). Finally, the appellant challenges the General Court’s finding that it did not show that the documents that disappeared might have been useful for its defence as regards the existence of a dominant position (fourth part), the rebate granted to the Saint-Gobain group (fifth part) and the definition of the relevant geographic market (sixth part).

By its fourth plea, Solvay claims that there was an infringement of its rights of defence, the rules on the burden of proof and the presumption of innocence in so far as the General Court decided that the documents missing from the file would not have been useful for its defence, even though it would have been sufficient that those documents strengthen the pleas it submitted at the outset, rather than allow it to formulate new pleas (first part), and present an opportunity, even a small one, of influencing the contested decision (second part).

By its fifth plea, the appellant claims infringement of its right to be heard following the annulment by the General Court of a first decision imposing a fine on the appellant but prior to the adoption, by the Commission, of the contested decision. Indeed, the judgment under appeal does not respond to its action for annulment and refuses to acknowledge that the Commission is under an obligation to hear the undertaking at issue where an earlier judgment of the General Court finds procedural irregularity which affected the preparatory measures.

By its sixth plea, the appellant criticises that the General Court infringed Article 102 TFEU and failed to fulfil its obligation to state reasons when it found an alternative definition of the relevant geographic market — a Community-wide market or national markets — to be valid.

By its seventh plea, Solvay criticises, in the light of the obligation to state reasons and Article 102 TFEU, the General Court’s finding of a dominant position in the judgment under appeal, according to which the relevant market is either Community-wide (first part) or national (second part). Furthermore, it criticises the General Court for nor taking into account exceptional circumstances which show that it did not have a dominant position (third part).

By its eighth plea, the appellant claims an infringement of Article 102 TFEU and a failure to state the grounds in so far as the General Court took the view that the rebate of 1.5 % granted to the Saint-Gobain group constituted a fidelity rebate which had an impact on the conditions of competition.

By its ninth plea, the appellant claims that there is a lack of statement of reasons and an infringement of Article 102 TFEU in so far as the General Court found that there was a discriminatory practice resulting from the rebate system granted to commercial partners, but did not check whether that practice created competitive disadvantages among clients of the dominant supplier (first part). Finally, Solvay criticises the General Court for not taking into account the small part represented by soda ash in its clients’ costs price.

(1) Commission Decision 2003/6/EC of 13 December 2000 relating to a proceeding pursuant to Article 82 [EC] (Case COMP/33.133-C: Soda ash — Solvay) (OJ 2003 L 10, p. 10)

(2) Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ 1962 13, p. 204)