EN Official Journal of the European Union C 261/19

Action brought on 4 August 2006 — Total and Elf Aquitaine v Commission

(Case T-206/06)

(2006/C 261/37)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France) (represented by: E. Morgan de Rivery, lawyer, and S. Thibault-Liger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— principally, annul Articles 1(c) and (d), 2(b), 3 and 4 of Commission Decision C(2006) 2098 final of 31 May 2006;

— in the alternative, amend Article 2(b) of Commission Decision C(2006) 2098 final of 31 May 2006, in so far as it imposes jointly and severally on Arkema SA, Altuglas International SA and Altumax Europe SAS a fine of EUR 219.13125 million, for which Total SA and Elf Aquitaine are held jointly and severally liable for EUR 140.4 million and EUR 181.35 million respectively, and reduce the amount of the fine in question to an appropriate level;

— in any event, order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicants seek the annulment in part of Commission Decision C(2006) 2098 final of 31 May 2006, by which the Commission found that the undertakings to which the decision was addressed, which included the applicants, infringed Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 — Methacrylates) by participating in a complex of agreements and concerted practices in the methacrylates sector consisting in discussions on prices, the conclusion, implementation and monitoring of price agreements, exchanges of commercially important information and confidential information on markets and/or undertakings as well as the participation in regular meetings and other contacts to facilitate the infringement. In the alternative, they seek the reduction of the amount of the fine imposed on their subsidiary for which they are held jointly and severally liable.

The main claim is based on nine pleas for annulment.

The first plea alleges an infringement of the rights of the defence and the principle of the presumption of innocence. The applicants submit that the contested decision was adopted following an administrative procedure during which they could not mount a useful defence to the extent that the Commission did not discharge its burden of proof, thus ignoring the principle of equality of arms.

In the second plea, they submit that the contested decision ignored the obligation to state reasons, which is made even greater, according to the applicants, by the alleged novelty of the position adopted by the Commission. They point out that the contested decision, in so far as it censures them for the infringement at issue committed by their subsidiary, bases the imputation of responsibility solely on the assumption of a determining influence of the applicants on their subsidiary on the ground that they hold virtually all of the subsidiary's share capital, without any consideration of facts that might support or refute this assumption. Furthermore, the applicants submit that the contested decision contains a number of contradictions that result from confusion between the concept of an undertaking/economic entity responsible for an infringement and the concept of a legal entity to which a decision is addressed. In the context of this plea, the applicants also complain that the Commission failed to respond sufficiently to their arguments regarding the independence of their subsidiary.

By the third plea, the applicants point out that in its decision the Commission acted in breach of the unitary nature of the concept of an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003 (1).

In the fourth plea, the applicants claim that the Commission infringed the rules governing whether breaches committed by a subsidiary can be imputed to its parent company. The applicants submit that the Commission disregarded the limits of its power as regards determining imputability by adopting an interpretation of the case-law relating to imputability which was incorrect and went against its decision-making practice. According to the applicants, the Commission also acted in breach of the principle of the independence of legal persons.

The fifth plea alleges infringement of the essential principles recognised by all the Member States and which form an integral part of the Community legal order such as the principle of non-discrimination, the principle of liability for one's own acts, the principle of the individual nature of penalties and the principle of legality.

In the sixth plea, the applicants submit that the Commission infringed the principle of good administration.

The seventh plea alleges infringement by the Commission of the principle of legal certainty on the part of the applicants.

By the eighth plea, the applicants contend that the contested decision constitutes a misuse of powers in that it holds them liable for the cartel at issue and orders them severally with their subsidiary to pay the fine.

In their ninth plea, the applicants consider that the Commission infringed certain fundamental principles that govern the calculation of fines such as the principle of equal treatment in so far as it did not apply a reduction of 25 % to the starting amount of the fine imposed on the applicants, whereas it did apply it to another undertaking to which the contested decision was addressed because of a lack of knowledge of the overall infringement. The applicants also allege infringement of the fundamental principles of the presumption of innocence and legal certainty which result, according to them, from a disregard for the limits placed on the Commission's power regarding the taking into account of deterrent effect.

In the alternative, the applicants consider that the fine imposed on their subsidiary, and for which they are held jointly and severally liable, should be reduced to a fair level. They seek to obtain a reduction of 25 % in the starting amount of the fine because of their lack of knowledge of the infringement and also to rely on mitigating circumstances in that they were ordered to pay large fines almost simultaneously in two similar cases.

(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)