EN Official Journal of the European Union C 55/30

Action brought on 15 December 2008 — RWE and RWE Dea v Commission

(Case T-543/08)

(2009/C 55/56)

Language of the case: German

Parties

Applicants: RWE AG (Essen, Germany) and RWE Dea AG (Hamburg, Germany) (represented by: C. Stadler and M. Röhrig, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— declare Article 1 of the decision to be void, in so far as it finds that there was an infringement by the applicants of Article 81(1) EC and Article 53 of the EEA Agreement;

— declare Article 2 of the decision to be void, in so far as it imposes a fine of EUR 37 440 000 jointly and severely on the applicants;

— in the alternative, make an appropriate reduction in the fine imposed jointly and severely on the applicants in Article 2 of the decision;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are challenging Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 — Candle Waxes, in which the defendant established that certain undertakings, including the applicants, had participated in a continuing agreement and/or concerted practice in the paraffin waxes sector, contrary to Article 81(1) EC and Article 53 of the Agreement on the European Economic Area.

The applicants rely on the following three pleas in law in support of their action.

In their first plea, the applicants claim that the defendant breached Article 81(1) EC and Article 23(2)(a) of Regulation (EC) No 1/2003 (1) by erroneously applying the notion of undertaking to the detriment of the applicants. The defendant held the applicants responsible for infringements by the former DEA Mineraloel AG and/or — after re-organisation of the company into an equally owned joint venture with Shell — the Shell & Dea Oil GmbH and, for that reason, imposed a fine on them without having established that they formed a single economic unit.

Alternatively, the applicants claim in their second plea that the defendant did not properly apply the Leniency Notice of 2002 and thereby infringed the principle of equal treatment, because it did not extend the leniency application for the paraffin wax business made by the former DEA Mineraloel AG and/or Shell & Dea Oil GmbH to the applicants. By so doing, the defendant contradicts its own view that the paraffin wax business was specifically part of the same economic unit as the applicants in the period from 3 September 1992 to 30 July 2002. Had the Leniency Notice been correctly applied, the defendant should have granted the applicants full immunity from any fine.

Alternatively, the applicants claim in their third plea that the defendant infringed fundamental principles governing the assessment of fines, in particular the principles of equal treatment and proportionality, and in that way infringed Article 23(2) and (3) of Regulation No 1/2003. The defendant incorrectly applied the 2006 Guidelines on fines by establishing the relevant turnover on the basis of a reference period which was not sufficiently representative, and thus determined a basic amount which was not proportionate to the severity of the infringement alleged against the applicants, and treated the applicants, by comparison with other involved parties, including Shell, in a discriminatory manner without objective grounds.

(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).