Case T-174/05: Action brought on 27 April 2005 by Elf Aquitaine against the Commission of the European Communities
Date: 2005-07-09
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), control of restrictive practices, fine, liability, parent company, restriction on competition, restrictive trade practice, subsidiary

9.7.2005

EN

Official Journal of the European Union

C 171/31

Action brought on 27 April 2005 by Elf Aquitaine against
the Commission of the European Communities

(Case T-174/05)

(2005/C 171/51)

(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 27 April 2005 by Elf Aquitaine,
having its registered office in Courbevoie (France), represented
by Eric Morgan de Rivery and Evelyne Friedel, lawyers.

The applicant claims that the Court should:

— annul Article 1(d) of Commission Decision C(2004) 4876
final of 19 January 2005, in so far as it determines that Elf
Aquitaine infringed Article 81 EC between 1 January 1984
and 7 May 1999 and Article 53 EEA between 1 January
1994 and 7 May 1999;

— consequently, annul (i) Article 2(c) of Commission Decision
C(2004) 4876 final of 19 January 2005,
in so far as it
imposes a fine of EUR 45 million on Elf Aquitaine and
Atofina jointly and severally, (ii) Article 3 of that same deci-
sion, in so far as it orders Elf Aquitaine to put an end to
the infringements of Article 81 EC and of Article 53 EEA,
and (iii) Article 4(9) of that decision, in so far as it addresses
the decision to Elf Aquitaine;

— in the alternative, annul Article 2(c) of Commission Deci-
sion C(2004) 4876 final of 19 January 2005, in so far as it
imposes a fine of EUR 45 million on Elf Aquitaine and
Atofina jointly and severally;

— in the further alternative, amend Article 2(c) of Commission
Decision C(2004) 4876 final of 19 January 2005, in so far
as it imposes a fine of EUR 45 million on Elf Aquitaine
and Atofina jointly and severally and reduce the fine
imposed to an appropriate amount;

— in any event, order the Commission to pay the costs in

their entirety.

Pleas in law and main arguments

In the contested decision the Commission found that the appli-
cant was involved in a concerted practice consisting of allo-

cating production quotas and customers, agreeing price
increases, setting up a compensation mechanism, exchanging
information on sales volumes and prices, meeting regularly and
being involved in other forms of contact, in order to agree on
and implement
the restrictions described. The Commission
imposed a fine on the applicant as a result of these infringe-
ments.

The applicant submits that the contested decision imposes a
fine on it for an infringement committed by its subsidiary and
claims that it should be annulled. It relies on the following
pleas:

In its first plea the applicant alleges infringement of its right to
a fair hearing. It alleges that the Commission did not set out its
arguments in its statement of objections clearly, that it did not
discharge the burden of proof as it should have and that it did
not take the facts resulting from the administrative procedure
into account.

In its second plea the applicant alleges lack of reasoning for the
contested decision, in the light of the alleged novelty of holding
the applicant liable for the actions of its subsidiary and the
alleged failure to respond to the applicant's rebuttals.

In its third plea the applicant submits that it is inconsistent to
hold the applicant liable for the infringement and at the same
time acknowledge that
involvement was
minimal when it was put to an end.

subsidiary's

the

In its fourth plea the application alleges infringement of the
rules governing the liability of a parent company for infringe-
ments committed by one of its subsidiaries.

In its fifth plea the applicant claims that the contested decision
infringes several essential principles that are recognised by all
of the Member States and form an integral part of the Com-
munity legal order, namely the principle of
the individual
nature of penalties, the principle of legality and the general
principle of presumption of innocence.

the

applicant

sixth plea

Its
irregularities
committed by the Commission during the procedure leading to
the adoption of the contested decision, which the applicant
considers as infringements of the principle of good administra-
tion.

several

alleges

C 171/32

EN

Official Journal of the European Union

9.7.2005

The applicant also submits, in its seventh plea, that the novelty
of the criterion for holding parent companies liable for infrin-
gements committed by their subsidiaries, as applied in the
contested decision, infringes the principle of legal certainty.

— in both alternatives, order the Commission to pay its own
costs and those of the applicants in these proceedings.

As regards the two subsequent pleas, the applicant alleges that
the Commission distorted the documentary evidence submitted
and that the contested decision amounts to a misuse of powers.

Pleas in law and main arguments

In the alternative, the applicant claims that the fine should be
annulled on the ground that the Commission's reasoning for its
calculation is completely incoherent.

In the further alternative, the applicant claims that the amount
of the fine should be reduced.

Action brought on 27 April 2005 by Akzo Nobel NV,
Akzo Nobel Nederland BV, Akzo Nobel AB, Akzo Nobel
Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo
Nobel Base Chemicals AB and Eka Chemicals AB against
the Commission of the European Communities

(Case T-175/05)

(2005/C 171/52)

(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 27 April 2005 by Akzo Nobel NV,
established in Arnhem (Netherlands), Akzo Nobel Nederland
BV, established in Arnhem (Netherlands), Akzo Nobel AB,
established in Stockholm (Sweden), Akzo Nobel Chemicals BV,
established in Amersfoort (Netherlands), Akzo Nobel Functional
Chemicals BV, established in Amersfoort (Netherlands), Akzo
Nobel Base Chemicals AB, established in Skoghall (Sweden),
and Eka Chemicals AB, established in Bohus (Sweden), repre-
sented by C. R. A. Swaak and A. Kayhko, lawyers.

The applicants contest
the Commission's Decision of 19
January 2005 relating to a proceeding under Article 81 EC and
Article 53 EEA (Case COMP/E-1/37.773 — MCAA), finding
that the applicants were involved in a complex of agreements
and concerted practices consisting of price fixing, market
sharing and agreed actions against competitors in the Mono-
chloroacetic acid sector in the EEA and imposing a fine on the
applicants.

In support of their application, the applicants submit a manifest
error of appreciation and a violation of Article 23(2) of Regu-
lation 1/2003 (1) in that the Commission wrongly attributed
the responsibility for the infringement also to Akzo Nobel NV,
the top holding company of the Akzo Nobel group, as well to
Akzo Nobel AB. According to the applicants, Akzo Nobel NV
did not have a decisive influence over the commercial policy of
its subsidiaries.

The applicants furthermore submit that the amount of the fine
imposed jointly and severally on the applicants exceeded, for
the Swedish companies in the MCAA business, the 10 % turn-
over limit set by Regulation 1/2003.

The applicants also contend a violation of the obligation to
state reasons under Article 253.

In the alternative, the applicants submit that the Commission
made various errors in relation to the calculation of the fine.
According to the applicants, the Commission erred in classifica-
tion of the companies when assessing the gravity of the infrin-
gement for the purposes of determining the basic amount of
the fine, violated the principle of proportionality in applying an
erroneous multiplier factor and the principle of equal treatment
in misapplying the 1996 Leniency Notice (2).

The applicants claim that the Court should:

— review, under Article 230 EC, the legality of the Decision

C(2004)4876 final of the Commission;

(1) 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).

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

cartel cases (OJ C 207, 18/07/1996, p. 4).

— annul, under Article 231 EC, the contested decision;

— or, in the alternative, reduce the amount of the fine;