EN Official Journal of the European Union C 96/30

Action brought on 23 February 2006 — Groupe Gascogne v Commission

(Case T-72/06)

(2006/C 96/49)

Language of the case: French

Parties

Applicant: Groupe Gascogne (Saint-Paul-lès-Dax, France) (represented by: C. Lazarus, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— primarily, set aside Articles 1(k), 2(i) and 4(12) of the decision in so far as they are addressed to Groupe Gascogne and imposed a fine on it, and amend Article 2(i) of the decision in so far as it imposes on Sachsa, contrary to Article 15(2) of Regulation No 17/62 and Article 23(2) of Regulation (EC) No 1/2003, a fine in excess of 10 % of its turnover;

— in the alternative, set aside Article 2(i) of the decision;

— in the further alternative, amend Article 2(i) of the decision and reduce the amount of the fine imposed jointly and severally on Sachsa and Groupe Gascogne;

— order the Commission to pay all of the costs of the proceedings.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial bags) by which the Commission decided that the undertakings to which that decision was addressed, which included the applicant, breached Article 81 EC by engaging in agreements or concerted practices in the industrial bags sector in Belgium, the Netherlands, Luxembourg, Germany, France and Spain. In the part of its decision which relates to the applicant, the Commission adjudged it to be jointly and severally liable with Sachsa Verpackung GmbH for the breach by reason of its status as parent company of Sachsa Verpackung. In the alternative, the applicant seeks annulment solely of Article 2(i), which imposes a fine on it, and, in the further alternative, the amendment of that article so as to bring about a reduction in the fine imposed.

In support of its claims, the applicant puts forward three pleas in law.

By the first plea, which is put forward as the principal plea, the applicant submits that the Commission breached the provisions of Article 81(1) EC by incorrectly attributing to it joint and several liability for the practices engaged in by Sachsa and by holding it jointly and severally liable for payment of the fine imposed on Sachsa.

By its second plea, put forward by way of alternative submission, the applicant submits that the Commission erred in law by misconstruing the notion of 'undertaking' within the meaning of Article 81 EC and, as a result, imposing on it a fine calculated on the basis of the consolidated turnover of Groupe Gascogne, whereas, according to the applicant, it ought to have based itself on the aggregate corporate turnover of Groupe Gascogne and Sachsa, having failed to set out reasons as to why the other subsidiaries of Groupe Gascogne ought to be included within ‘the undertaking’ liable in respect of the practices of Sachsa adjudged anti-competitive in the contested decision.

By its third plea, put forward as a further alternative, the applicant contends that the Commission infringed the principle of proportionality by imposing an allegedly excessive fine on Sachsa and Groupe Gascogne jointly and severally, in particular by failing to ensure that there was a reasonable relation between the penalty imposed and the actual turnover achieved by Groupe Gascogne within the plastic bags sector.