Case T-104/04: Action brought on 16 March 2004 by Peroxid-Chemie GmbH & Co. KG against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, fine, inter-company cooperation, organic chemical, oxide, restriction on competition

C 118/44

EN

Official Journal of the European Union

30.4.2004

Pleas in law and main arguments:

The applicant claims that the Court should:

the Commission found that

By the contested decision,
the
applicant and five other undertakings and groups of undertak-
ings had infringed Article 81(1) EC by participating in a series
of agreements and coordinated practices on the market for
organic peroxides. A fine of EUR 1 000 was imposed on the
applicant.

The applicant submits that it neither produces nor distributes
organic peroxides and that it was at no time active on the
market affected by the infringement.
Its action is directed
against the Commission's finding that it infringed Article 81 by
providing services to three producers of organic peroxides. The
Commission's erroneous legal assessment is based on incorrect
factual allegations. The Commission adopted those false allega-
tions without criticism because the applicant was unable to
comment on them during the Commission's investigation. In
doing so, the Commission infringed the applicant's rights of
defence and acted in breach of the fundamental right to due
process.

Moreover, the applicant states that, although the Commission
imposed only a symbolic fine on it, it considers itself compelled
to bring an action against the decision in order to obtain legal
certainty for its business activities. In the words of the Commis-
sion, the decision sets a precedent by which the Commission
enters new territory. If the decision were to become final, there
would be a risk that, in future, services provided by the appli-
cant which have thus far been lawful and which do not restrict
competition would be prohibited and subject to a financial
penalty.

The applicant submits further that the Commission has acted
in breach of the principle of nullum crimen, nulla poena sine
lege since the applicant was neither a party, as an undertaking,
to the agreement restricting competition nor is it a group of
undertakings. With respect to the applicant, the Commission's
legal assessment is not only erroneous but also very unclear
and inconsistent. The contested decision is also inconsistent
with the need for clarity of measures and infringes the principle
of legal certainty and the principle of the protection of legiti-
mate expectations.

Action brought on 16 March 2004 by Peroxid-Chemie
GmbH & Co. KG against the Commission of the European
Communities

(Case T-104/04)

(2004/C 118/97)

(Language of the Case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 16 March 2004 by Peroxid GmbH
& Co. KG, Pullach (Germany), represented by M. Karl and C.
Steinle, lawyers.

— annul Article 2(a),

the
(c) and (d) of
Commission of the European Communities of 10 December
2003 (notified on 7 January 2004)
in Case COMP/E-2/
37.857 – Organic Peroxide;

the Decision of

— in the alternative, reduce the fines imposed on the applicant

in Article 2(c) and (d) of the decision;

— set the fine imposed on Akzo Nobel Polymer Chemicals
B.V., Akzo Nobel N.V., and Akzo Nobel Chemicals Interna-
tional B.V., as jointly liable companies at EUR 120.75
million;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments:

By the contested decision the Commission held that the appli-
cant and five other undertakings (including Akzo) or groups of
undertakings infringed Article 81(1) EC by participating in a
series of agreements and concerted practices on the market for
organic peroxide. Two fines were imposed on the applicant. No
fine was imposed on Akzo.

The applicant is not objecting to the decision as a whole but
only to the fines imposed on it therein. The applicant takes the
view that the Commission should not have imposed two fines
on the applicant as a result of its participation in anti-competi-
tive practices on the market for organic peroxide. The Commis-
sion either infringed the prescription provisions or the prohibi-
tion on double penalties. Even if
the two penalties were
imposed on the applicant for two different infringements, the
first one (from 1971 to the end of August 1992) on the part of
the applicant was already time-barred. If, on the other hand,
both fines were imposed for one and the same continuous
infringement on the part of the applicant, then there was a
double penalty.

The applicant also argues that the Commission disregarded the
maximum limit in Article 15(2) of Regulation No 17 as the
fines imposed on the applicant by far exceeded 10 % of its
total turnover in the last trading year before adoption of the
decision. Furthermore, the Commission should not have classi-
fied the applicant as a second-time offender and should there-
fore not have been able to increase the basic amount of the
In so doing the
fine imposed on the applicant by 50 %.
Commission infringed the principle of
the presumption of
innocence and the applicant's rights of defence.

30.4.2004

EN

Official Journal of the European Union

C 118/45

Finally, the applicant claims that the Commission failed to have
regard to the principle of equal treatment and the leniency
notice of 1996 by not imposing a fine on Axzo even though it
was proven to have played a decisive role in implementing the
unlawful conduct. In so doing the Commission afforded the
applicant's main competitor an unjustified financial advantage
worth millions which directly and individually concerned the
applicant.

Action brought on 19 March 2004 by Atlantic Container
Line AB, Grupo TMM SA De CV, Hanjin Shipping Co Ltd,
Hyundai Merchant Marine Co Ltd, Mediterranean Shipping
Co SA, Neptune Orient Lines Ltd, Orient Overseas
Container Line (UK) Ltd, P&O Nedlloyd Container Line
Limited and Sea-Land Service, Inc against the Commission
of the European Communities

(Case T-113/04)

(2004/C 118/98)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 March 2004 by Atlantic
Container Line AB, Gothenburg (Sweden), Grupo TMM SA De
CV, Tlalpan (Mexico), Hanjin Shipping Co Ltd, Seoul (South
Korea), Hyundai Merchant Marine Co Ltd, Seoul (South Korea),
Mediterranean Shipping Co SA, Geneva (Switzerland), Neptune
Orient Lines Ltd, Singapore (Republic of Singapore), Orient
Overseas Container Line (UK) Ltd, Levington (United Kingdom),
P&O Nedlloyd Container Line Limited, London, and Sea-Land
Service, Inc, Jacksonville (USA), represented by J. Pheasant, M.
Levitt and K. Nicholson, Solicitors.

The applicant claims that the Court should:

(a) order the Commission to pay to the applicants the sums set

out in Annex A.1 to this application;

(b) order the Commission to pay to the applicants interest at
the rate of the European Central Bank for capital refinan-
cing operations plus 2 %, or at such other rate as the Court
considers to be just in all the circumstances, payable in rela-
tion to the period from the date on which each individual
applicant's respective liability for costs in respect of its
bank guarantee ceased (as set out in Annex A.1) until the
date of the Court's judgment on this application;

(c) order the Commission to pay to the applicants interest at
such rate as the Court considers to be just in all the circum-
stances on such amounts as the Court orders to be paid
under sub-paragraphs (b) and (c) above as from the date of
the Court's judgment in this case until payment thereof;

(d) order that the decision contained in or evidenced by the

Commission's letter of 6 January 2004 be annulled;

(e) order the Commission to pay the applicants' costs.

Pleas in law and main arguments:

On 16 December 1998, the Commission imposed fines on the
applicants in respect of two infringements of Article 82 EC. By
judgment of 30 September 2003 (1), The Court of First Instance
annulled those fines in full.

The applicants allege that
they have suffered considerable
monetary loss as a direct result of the Commission's unlawful
imposition of the fines. According to the applicants, this loss
takes the form of
the costs incurred by the applicants in
providing bank guarantees in lieu of payment of the fines
unlawfully imposed and in maintaining those guarantees in
force from the date on which they were first obtained until the
date of their cancellation. The payment of a sum equal to such
costs is necessary in order to restore the applicants to the legal
position in which they would have been, had the Commission
not unlawfully imposed such fines.

The applicant seeks an order requiring the Commission to take
the ‘necessary measures’ required by Article 233 EC to comply
with the above-mentioned judgment, by paying each of the
applicants an amount equivalent to the costs incurred by each
applicant respectively in the provision of its bank guarantee,
together with the appropriate interest.

(1) Judgment of 30.9.2003 in joined Cases T-191/98 and T-212/98–T-
214/98, Atlantic Container Line and others/Commission (not yet
published in European Court Reports).

Action brought on 24 March 2004 by Wieland-Werke
Aktiengesellschaft against the Commission of the Euro-
pean Communities

(Case T-116/04)

(2004/C 118/99)

(Language of the Case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 24 March 2004 by Wieland-Werke
Aktiengesellschaft, Ulm (Germany), represented by R. Bechtold
and U. Soltész, lawyers.

The applicant claims that the Court should: