Case T-168/05: Action brought on 25 April 2005 by Arkema against the Commission of the European Communities
Date: 2005-07-09
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical compound, fine, liability, parent company, restriction on competition, restrictive trade practice, subsidiary

C 171/28

EN

Official Journal of the European Union

9.7.2005

Action brought on on 13 April 2005 by Johan de Geest
against Council of the European Union

Action brought on 25 April 2005 by Arkema against the
Commission of the European Communities

(Case T- 164/05)

(2005/C 171/46)

(Language of the case: French)

(Case T-168/05)

(2005/C 171/47)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 13 April 2005 by Johan de Geest, residing in
Rhode-St-Genèse (Belgium), represented by Sébastien Orlandi,
Xavier Martin, Albert Coolen,
Jean-Noël Louis and Etienne
Marchal, lawyers, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision to appoint him as an official of the Euro-
pean Communities in that it fixes his grade on recruitment
at A*6, pursuant to Article 12 of Annex XIII to the Staff
Regulations;

— order the Council to pay the costs.

Pleas in law and main arguments

a

in internal

applicant was

The
competition
candidate
CONSEIL/A/273 held to fill a post as doctor in grade A6 or
A7. The applicant was successful in the competition and was
appointed in grade A*6. The applicant contests that decision,
claiming that he should have been appointed in grade A*8,
A*9 or A*10, which, under the new system, correspond to the
former grades referred to in the notification of competition.

In support of his action, the applicant claims that the Council
fixed his grade on recruitment without having regard to the
notification of vacancy and, accordingly, breached Articles 29
and 31 of the Staff Regulations and also the principle of legiti-
mate expectations. In that context, the applicant also claims
that article 12 of Article XIII to the Staff Regulations, which
the Council applied when fixing his grade on recruitment,
unlawfully alters the framework of legality of the recruitment
procedure.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 25 April 2005 by Arkema, having
its registered office in Paris, represented by Michel Debroux,
lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Articles 1(d), 2(c) and 4(9) of Commission Decision
C(2004) 4876 final of 19 January 2005, in so far as they
concern Elf Aquitaine and impose a fine on it, because of
errors of law and an infringement of essential procedural
requirements and, consequently, amend Article 2(c) and (d)
of the decision in so far as it imposed an excessive fine on
Arkema and determine a lesser amount;

— or, in the alternative, amend Article 2(c) and (d) of the deci-
sion in so far as it imposed an excessive fine on Arkema
and on Elf Aquitaine and reduce the amount of the fine;

— in both alternatives, order the Commission to pay its own

costs and those of the applicant in these proceedings.

Pleas in law and main arguments

In the contested decision the Commission imposed first, on the
applicant and its parent company, Elf Aquitaine SA, jointly and
fines of
severally, and second, on the applicant alone,
EUR 45 000 000 and EUR 13 500 000 respectively for their
involvement along with ten other undertakings in a cartel in
the Monochloroacetic acid sector.

9.7.2005

EN

Official Journal of the European Union

C 171/29

In support of its action the applicant submits, first, that the
Commission made several errors in law in attributing the appli-
cant's practices, the materiality and classification of which are
not disputed, to Elf Aquitaine. The Commission thus misinter-
preted the rules governing a parent company's liability for prac-
tices carried out by a subsidiary in making a de facto irrebut-
table presumption of accountability deriving from its majority
shareholding in its subsidiary and consequently, in not showing
how the parent company was actually involved in the practices
in question. According to the applicant,
irrebuttable
presumption infringes the principle of legal and commercial
autonomy of the subsidiary, the principle of personal liability
for breaches of competition law and the principle of non-discri-
mination between undertakings on the basis of their legal orga-
nisation. Moreover, the applicant claims that the Commission
did not respect the essential procedural requirements in so far
as no reasons were given at all for applying the irrebuttable
presumption.

this

Second, the applicant submits that the fine imposed was exces-
sive, disproportionate and discriminatory. In support of this
submission it pleads infringement of the proportionality prin-
ciple in determining the initial amount of the fine, in deter-
mining the factor applied to make the fine a sufficient deterrent
and in determining the multiplying factor based on the dura-
tion of the breach.

In the alternative, the applicant submits that should Elf Aqui-
taine not be exonerated, its pleas regarding infringement of the
proportionality principle are still well-founded. In addition, the
applicant submits that the Commission took Arkema's turnover
into account twice in its method of calculation, thus imposing
a double penalty for the same fact.

Action brought on 20 April 2005 by Jean-Louis Giraudy
against the Commission of the European Communities

(Case T-169/05)

(2005/C 171/48)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

European Communities on 20 April 2005 by Jean-Louis
Giraudy, residing in Paris, represented by Dominique Voillemot,
lawyer.

The applicant claims that the Court should:

— annul the Commission's decision of 21 February 2005 inas-
much as it does not acknowledge the faults of the Press D-
G and rejects his complaint;

— declare that those faults have caused actual and quantifiable
damage, and that there is a causal link between those faults
and the damage;

— declare lawful, in consequence, financial compensation for
the damage suffered by the applicant and fix the compensa-
tion for the non-material damage suffered at the sum of
EUR 500 000;

— order the Commission to pay the costs.

Pleas in law and main arguments

At the material time, the applicant was Head of the Commis-
sion's Office in France. As a result of allegations made against
him concerning supposed irregularities adversely affecting the
European Union's budget, the European Anti-Fraud Office (the
OLAF) carried out an operation at the headquarters of the
Commission's Office on 18 November 2002. The next day the
applicant was transferred to Brussels and forbidden all contact
within the Commission or without.

The applicant also claims that a press release issued by the
Commission on 21 November 2002 and widely circulated gave
rise to considerable publicity unfavourable to him in the media.
According to the applicant, the OLAF's report of 6 May 2003
concluded that the allegations against him were groundless.

By this action the applicant seeks to obtain compensation for
the damage caused him by those acts. In support of his action
he claims that he was transferred unlawfully, without justifica-
tion and in breach of the presumption of innocence. He also
claims that the Commission's spokesman did not observe the
confidential nature of the inquiry and made public statements
liable to damage his reputation. Finally, he claims that certain
allegations concerning him were made by the Director General
of the Press Directorate-General, of the flimsiness of which the
latter must have been aware.