EN Official Journal of the European Union C 86/42

Action brought on 23 February 2006 — Low & Bonar and Bonar Technical Fabrics v Commission

(Case T-59/06)

(2006/C 86/81)

Language of the case: English

Parties

Applicants: Low & Bonar plc (Dundee, United Kingdom) and Bonar Technical Fabrics NV (Zele, Belgium) [represented by: L. Garzaniti, lawyer, M. O'Regan, Solicitor]

Defendant: Commission of the European Communities

Form of order sought

— Annul the Contested Decision of the Commission, no. C(2005)4634, of 30 November 2005, in case COMP/F/38.354 — Industrial bags in its entirety, insofar as it relates to the applicants; or

— in the alternative, annul in part Article 1(1) insofar as it relates to the applicants and annul in part, or alternatively, reduce as appropriate the fine imposed by Article 2 on the applicants; and

— in the further alternative, reduce substantially the amount of the fine imposed by Article 2 upon the applicants; and

— order the defendant to pay the costs of the proceedings, including default interest incurred by the applicants or either of them associated with the payment in whole or part of the fine; and

— take any other measures that the Court considers to be appropriate.

Pleas in law and main arguments

By the Contested Decision the Commission found that Bonar Phormium Packaging (‘BPP’) had participated in a complex cartel between manufacturers of plastic industrial bags, affecting Belgium, France, Germany, Luxembourg, the Netherlands and Spain. It also found that this cartel had been organised at the European level around a trade association known as Valveplast, along with various sub-groups. It found the first applicant liable for BPP's participation on the grounds that it was the parent company of Bonar Phormium NV (‘BP’), of which BPP was a division, and the second applicant liable on the grounds that it was the legal successor to BP, with which it had effected a legal merger. The Commission imposed a fine of 12.24 million EUR on the applicants.

The first applicant contends that the Commission committed errors of law and assessment in finding it liable for the infringement committed by BPP. It alleges that, contrary to the findings of the Contested Decision, it did not participate in the commercial policy of BPP, whose management determined autonomously its conduct on the market.

Both applicants further and alternatively contend that the Commission committed errors of law and assessment in finding that the complex arrangement identified in the Contested Decision amounted to a single and continuous infringement of Article 81 EC committed, at the European level, around Valveplast, alternatively in finding that BPP had participated in or was otherwise aware of and thereby responsible for such an infringement. According to the applicants, the Commission was only entitled to find that BPP had participated in, or alternatively was aware of and responsible for, arrangements covering Belgium and the Netherlands and, of having participated in the Valveplast cartel for one week only, i.e. between 21 November 1997, when a representative of BPP attended a Valveplast meeting, and 28 November 1997 when, according to the Contested Decision, BPP's participation came to an end.

The applicants further and alternatively submit that the fine imposed by the Commission was excessive and disproportionate and infringed the principles of equal treatment and non-discrimination and that the Commission committed other errors of law and assessment in determining the level of the fine and furthermore failed to provide reasons to justify its calculation of the fine. In this context the applicants allege that the Commission failed to appreciate that BPP had played an exclusively passive and limited role and that, further, the Commission imposed a disproportionately and excessively high basic amount.