Case T-101/05: Action brought on 1 March 2005 by BASF Aktiengesellschaft of Ludwigshafen against the Commission of the European Communities
Date: 2005-05-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, control of restrictive practices, fine, rights of the defence, unlawful agreement

C 115/28

EN

Official Journal of the European Union

14.5.2005

Action brought on 1 March 2005 by BASF Aktienge-
sellschaft of Ludwigshafen against the Commission of the
European Communities

(Case T-101/05)

(2005/C 115/51)

(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 1 March 2005 by BASF Aktienge-
sellschaft of
established in Ludwigshafen
(Germany), represented by N. Levy and J. Temple Lang, Solici-
tors and C. Feddersen, lawyer.

Ludwigshafen,

The applicant claims that the Court should:

— annul or substantially reduce the fine imposed on BASF

pursuant to the decision;

— order the Commission to pay BASF's legal and other costs

and expenses in relation to this matter.

Pleas in law and main arguments

The applicant furthermore submits that the 50 % increase of
its fine for recidivism, based on infringements that happened
almost 40 and 20 years ago, is contrary to the principle of
legal certainty and the principle of proportionality. The appli-
cant also states that the increase for recidivism is wrongly
calculated because the 50 % was not calculated on the starting
amount, but on the starting amount already increased for size
and deterrence.

The applicant claims that is was also entitled to a greater reduc-
tion of its fine under section D of the Leniency Notice (4). The
applicant states first of all that, since it was entitled to a reduc-
tion for not substantially contesting the facts, the only issue is
the Commission correctly assessed the applicant's
whether
cooperation in other
the Leniency Notice.
respects of
According to the applicant, the Commission, because it lost
parts of the case file, made a wrong and incomplete assessment
of the applicant's cooperation. According to the applicant, the
decision incorrectly describes the content of certain submis-
sions of the applicant, omits other elements of the applicant's
cooperation with the investigation and contains inconsistent
descriptions of the cooperation. The applicant claims also that
it was in any event entitled to a greater reduction of its fine.

The applicant contests the fine imposed on it by the Commis-
sion's Decision of 9 December 2004 relating to a proceeding
under Article 81 EC and Article 53 EEA (Case COMP/E-2/
37.533-Choline Chloride),
the applicant was
involved in a complex of agreements and concerted practices
consisting of price fixing, market sharing and agreed actions
against competitors in the choline chloride sector in the EEA.

finding that

Finally, the applicant submits that the Commission erred in
finding that there was one continuous infringement and that
the disclosure of the amount of the fine to the media prior to
the adoption of the decision constitutes an infringement of the
Commission's obligation of professional secrecy and its duty of
good administration which impeded a proper evaluation and
an independent review of the case by the College of Commis-
sioners.

(1) EEC Council: Regulation No 17: First Regulation implementing Arti-
cles 85 and 86 of the Treaty (OJ English special edition: Series I
Chapter 1959-1962, p. 87)

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ L 1, p. 1)

(3) Guidelines on the method of setting fines imposed pursuant to
Article 15 (2) of Regulation No 17 and Article 65 (5) of the ECSC
Treaty (OJ 1998 C 9, p. 3)

(4) Commission Notice on the non-imposition or reduction of fines in

cartel cases (OJ 1996 C 207, p. 4)

In support of its application, the applicant submits that its
rights of defence were infringed in that the Statement of Objec-
tions did not clearly state the elements relevant to the calcula-
tion of the fine imposed on the applicant by the final decision.
The applicant states that in particular the 100 % increase of
the fine for deterrence was not fully explained to it in the State-
ment of Objections.

The applicant also submits that the increase of the fine for
deterrence and for size is not permitted under Regulation
17/62 (1), now Regulation 1/2003 (2), or the Fining Guide-
lines (3), and is furthermore not necessary. According to the
applicant, the overall size of a company can only be used to
measure the impact of an infringement on the market and not
as a basis for an increase of the fine. The applicant also claims
that an increase for deterrence should be used with moderation
and when there are clear reasons, which was not the case for
the applicant.