EN Official Journal of the European Union C 212/39

Action brought on 18 July 2006 — Arkema France v Commission

(Case T-189/06)

(2006/C 212/69)

Language of the case: French

Parties

Applicant: Arkema France (Puteaux, France) (represented by: A. Winckler, lawyer, S. Sorinas, lawyer, and P. Geffriaud, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— on the basis of Article 230 EC, annul the decision adopted by the Commission of 3 May 2006 in Case COMP/F/38.620 in so far as it concerns Arkema;

— in the alternative, annul or reduce, on the basis of Artice 229 EC, the amount of the fine imposed upon it by that decision;

— order the Commission pay to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, which included the applicant, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of agreements and concerted practices consisting of the exchange of information between competitors and agreements on prices and production capacities and also of supervision of the implementation of those agreements in the hydrogen peroxide and sodium perborate sector. In the alternative, it seeks the annulment or reduction of the amount of the fine imposed on it by that decision.

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

By its first plea, the applicant submits that, by holding Elf Aquitaine and Total liable for the infringement committed by Arkema on the basis of a mere presumption linked to the fact that almost all its capital was held by those companies at the material time, the Commission made errors of law and fact in the application of the rules relating to holding a parent company liable for practices implemented by a subsidiary and it breached the principle of non-discrimination. The applicant claims to have refuted that presumption of control during the investigation. In addition, it argues that the Commission breached its duty to state reasons under Article 253 EC and also the principle of good administration by not responding to all the arguments expanded by the applicant in its response to the statement of objections.

By its second plea, the applicant claims that the Commission made an error of law in that it increased by 200 % the ‘starting amount’ for Arkema's fine by way of a deterrent by taking as a basis the turnover of Total and Elf Aquitaine, the parent companies at the material time, since one or both of those companies could not, according to the applicant, be held liable for the alleged breach. As a subsidiary argument in the context of that plea, the applicant submits that, supposing that the parent companies could be held liable for the breach, the Commission breached the principles of proportionality and equal treatment by applying a multiplying factor of 3 (or an increase by 200 %) to the ‘starting amount’ of the fine imposed on Arkema by way of a deterrent.

Thirdly, the applicant submits that it is in breach of law that the decision increased the ‘basic amount’ of Arkema's fine by 50 % on the grounds of repeated infringement. It argues that the application of the notion of repeated infringement is manifestly excessive in the present case and contrary to the principle of legal certainty as regards infringements found by the Commission on the basis of facts far removed from the present time. Furthermore, the applicant alleges that the Commission breached the principle of ‘non bis in idem’ and the principle of proportionality, since the existence of earlier decisions against it had already been taken into account on several occasions by the Commission in other recent decisions in which it imposed on Arkema an increase of the fine by 50 % by virtue of repeated infringement. The applicant claims that it is being penalised again for the same acts.

Finally, it submits that the decision is well founded in neither law nor fact, in so far as it did not grant the applicant a reduction greater than 30 % of the amount of the fine by virtue of its cooperation during the proceedings. The applicant contends that the Commission made a manifest error of assessment and also an error of law in that it did not apply Title B of the Leniency Notice (1) to grant it a reduction of the fine of 50 %.

(1) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)