EN Official Journal of the European Union C 96/25

Action brought on 24 February 2006 — FLSmidth v Commission

(Case T-65/06)

(2006/C 96/43)

Language of the case: English

Parties

Applicant: FLSmidth & Co. A/S (Valby, Denmark) [represented by: J.-E. Svensson, lawyer]

Defendant: Commission of the European Communities

Form of order sought

— Primarily, annul the Decision of the Commission, no. C(2005)4634, of 30 November 2005, relating to a proceeding under Article 81 EC, in case COMP/F/38.354 — Industrial bags, in so far as it concerns the applicant;

— secondarily, set the amount of the fine of which the applicant is held jointly and severally liable in Article 2 of the above Decision at 0 EUR in so far as it concerns the applicant;

— order the Commission to pay the costs.

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. Another company, FLS Plast, of which the applicant was the holding company, had owned shares of TW and, for most of the period for which the applicant was found liable, TW was FLS Plast's wholly owned subsidiary. A fine was imposed on TW, and the applicant and FLS Plast were made jointly and severally liable for part of that fine.

In support of its application, the applicant first of all contends that the Commission did not correctly apply the test for liability of the parent company, as it did not adduce evidence to the effect that there existed circumstances, in respect of the applicant, which could support a presumption of parental influence on TW. The applicant also contends that, in any case, the Commission did not apply the correct legal test since a stricter set of criteria is applicable in a situation such as the one in the present case, where, according to the Commission, TW started participating in the cartel long before its acquisition by the applicant's daughter company, and continued to do so after its disposal. In any event, the applicant considers that it has established that TW decided independently its own conduct on the market and did not carry out instructions given to it by the applicant.

The applicant also submits that attribution of liability to it is discriminatory, disproportionate and arbitrary since none of the other groups comprised by the Decision had liability attributed to the operating subsidiary, a parent company and the parent's parent company, as was the case with TW and the applicant. Furthermore, even though TW had previously belonged to another group, the Commission did not attribute any liability for TW's participation in the cartel, on any member of that other group. Finally, the liability attributed to the applicant is disproportionate since the applicant was made liable for 85.7 % of the fine imposed on TW even though it had a shareholding in it for only 8 years out of a total of 20 in which the latter was supposedly involved in the cartel.

The applicant also invokes the latter arguments in support of its secondary claim, to have the fine imposed on it reduced. It further argues that the fine imposed on it is excessive, since the Commission failed to set a separate basic amount of the fine for the applicant, taking into account its lack of responsibility. It also contends that the Commission erred in law by not taking into account certain attenuating circumstances in its favour.

Finally, the applicant contends that the Commission committed further errors in law by attributing liability to TW for the period 1982 to 1988; imposing on the latter a fine which is disproportionate, excessive and exceeds the 10 % of turnover ceiling; and by not letting the applicant, as a secondary liable party, benefit from the leniency granted to the principally liable party, TW or, at least, granting an independent reduction of fines to the applicant under the leniency notice.