EN Official Journal of the European Union C 96/24

Action brought on 23 February 2006 — FLS Plast v Commission

(Case T-64/06)

(2006/C 96/42)

Language of the case: English

Parties

Applicant: FLS Plast A/S (Copenhagen, Denmark) [represented by: K. Lasok, QC, and M. Thill-Tayara, lawyer]

Defendant: Commission of the European Communities

Form of order sought

— Annul Articles 1(h) and 2(f) of 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 they apply to the applicant;

— alternatively, amend Article 2(f) of the Contested Decision and substantially reduce the amount of the fine imposed jointly and severally on FLP Plast in exercise of the Court's unlimited jurisdiction, 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;

— order the Commission to pay FLS Plast's legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

By the Contested Decision the Commission found that the applicant had infringed Article 81 EC by participating in a complex of agreements and concerted practices in the plastic industrial bags sector, affecting Belgium, France, Germany, Luxembourg, the Netherlands and Spain, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, the submission of concerted bids in response to certain invitations to tender and the exchange of individualised information. The applicant's infringement related to the conduct of another company, Trioplast Wittenheim SA (‘TW’), which was found to have participated in the cartel in question. The applicant had owned shares of TW and, for most of the period for which the applicant was found liable, TW was its wholly owned subsidiary. A fine was imposed on TW, and the applicant was made jointly and severally liable for part of that fine.

Without contesting the existence and duration of the cartel or the participation of its former subsidiary, the applicant contends that the Commission erred in law in determining the amount of the fine it imposed on it. The applicant points out that the part of the fine on TW for which the applicant was made liable is manifestly disproportionate to the period during which it held shares in TW.

The applicant further submits that the Contested Decision violates the principles of non-discrimination and proportionality, to the extent that it held both the applicant and its own parent company liable for TW's conduct, even though it decided not to address the Contested Decision to intermediate holding companies and did not, in fact, address it to such companies other than the applicant.

The applicant also submits that it was not aware of TW's unlawful conduct, did not exercise influence over its management and was not part of the undertaking (TW) involved in the infringements referred to in the Contested Decision and that, therefore, the Contested Decision is unlawful and should be annulled.

In the alternative, the applicant requests the Court to reduce the amount of the fine, in exercise of its unlimited jurisdiction. In this context, it puts forward that the fine imposed on TW was too high since past practice and the gravity of the infringement do not justify the level of the basic amount of the fine; that the Commission erred in determining the duration of the infringement for TW; and that the Commission failed to assess whether the fines imposed on TW and the applicant complied with the 10 % ceiling rule.

With regard to the fine imposed on itself, the applicant also contends that it is disproportionately high, taking into account the lack of deterrent effect, the duration and the intensity of the infringement. Further, the applicant argues that the Commission erred in failing to reduce its liability in accordance with the Leniency Notice, more particularly by failing to pass the 30 % reduction granted to TW on to the applicant's own liability and refusing to grant the applicant a reduction. Finally, the applicant invokes the violation of the principle non bis in idem and the principle according to which penalties should relate to the specific circumstances of each applicant; in this context, it points out that although it was the parent company of TW for only 35 % of the period of the latter's involvement in the cartel, it was made liable to pay 85.7 % of TW's fine.