Case T-64/06: Action brought on  23 February 2006  — FLS Plast v Commission
Date: 2006-02-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restrictive trade practice

C 96/24

EN

Official Journal of the European Union

22.4.2006

Action brought on 16 February 2006 — Italian Republic v
Commission

which is not capable of altering the fact, which is not
disputed, that the provision is of general scope.

(Case T-60/06)

(2006/C 96/41)

Language of the case: Italian

Parties

— The aid in question should have been regarded as existing
aid in accordance with the provisions of Article 1(b)(ii) of
Regulation (EC) No 659/1999 since the Italian State was
duly authorised by the Council to keep the exemption that
is the subject of the dispute in force.

— The exemption in question was closely linked with the
attainment of environmental protection objectives, as may
be inferred from the legislation implemented by the Italian
Government and from the agreements concluded by Eural-
lumina with the region of Sardinia and the Ministero
dell'Ambiente (Environment Ministry).

Applicant):
Avvocato dello Stato)

Italian Republic (represented by: Giacomo Aiello,

— The exemption should have been regarded as necessary for

the economic development of the region of Sardinia.

Defendant): Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— In the opinion of the Italian Government, once Directive
2003/96/EC entered into force, there was no longer any
obligation to give notification of the tax benefit in question
as Article 18 in conjunction with Annex II of that directive
expressly provided that the disputed tax should remain in
force and unaffected until 31 December 2006. Moreover,
the content of those provisions is analogous to that of
Article 1(2) of Council Decision 2001/224/EC.

— annul Commission Decision C (2005) 4436 final of 7
December 2005 and order the Commission to pay the costs
of the proceedings.

Finally, the applicant pleads infringement of the principle of
the protection of legitimate expectations and the presumption
of the legality of Community provisions.

Pleas in law and main arguments

The applicant brings the present action against Commission
Decision C (2005) 4436 final of 7 December 2005 concerning
the exemption from the tax on mineral oils used as fuel for the
production of alumina in the region of Gardanne, the region of
Shannon and in Sardinia, implemented by France, Ireland and
Italy respectively.

With regard to the applicant, that decision stated that:

— The exemptions in question were not intended to apply
generally and without distinction to all those to whom it
was addressed, but were designed to support certain under-
takings on account of the special structure of the alumina
market.

— The aid in question was new and unlawful since notification
of it was not given in due time and it was to be regarded as
partially existing until 29 May 1998.

Action brought on 23 February 2006 — FLS Plast v
Commission

(Case T-64/06)

(2006/C 96/42)

Language of the case: English

— Up to 31 October 2003 that aid was incompatible with

State aid rules on the protection of the environment.

Parties

In support of its claims, the applicant submits that:

— The tax exemption provided for by Italian legislation was
not selective but was directed at all businesses using
mineral oil for the production of aluminium oxide. The fact
that there is only one plant in Italy at which such oil is
used in the production cycle is simply a matter of fact

Applicant: FLS Plast A/S (Copenhagen, Denmark) [represented
by: K. Lasok, QC, and M. Thill-Tayara, lawyer]

Defendant: Commission of the European Communities

22.4.2006

EN

Official Journal of the European Union

C 96/25

Form of order sought

— Annul Articles 1(h) and 2(f) of the Contested Decision of
the Commission, no. C(2005)4634, of 30 November 2005,
in case COMP/F/38.354 — Industrial bags in its entirety,
insofar as they apply to the applicant;

— alternatively, amend Article 2(f) of the Contested Decision
and substantially reduce the amount of the fine imposed
jointly and severally on FLP Plast in exercise of the Court's
unlimited jurisdiction, annul in part Article 1(1) insofar as
it relates to the applicants and annul in part, or alterna-
tively, reduce as appropriate the fine imposed by Article 2
on the applicants;

— order the Commission to pay FLS Plast's legal and other

costs and expenses in relation to this matter.

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 calcula-
tion 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. The applicant had
owned shares of TW and, for most of the period for which the
applicant was
its wholly owned
subsidiary. A fine was imposed on TW, and the applicant was
made jointly and severally liable for part of that fine.

found liable, TW was

its

Without contesting the existence and duration of the cartel or
the participation of
the applicant
former
contends that the Commission erred in law in determining the
amount of the fine it imposed on it. The applicant points out
that the part of the fine on TW for which the applicant was
made liable is manifestly disproportionate to the period during
which it held shares in TW.

subsidiary,

The applicant also submits that it was not aware of TW's
unlawful conduct, did not exercise influence over its manage-
ment and was not part of the undertaking (TW) involved in the
infringements referred to in the Contested Decision and that,
therefore, the Contested Decision is unlawful and should be
annulled.

In the alternative, the applicant requests the Court to reduce
the amount of the fine, in exercise of its unlimited jurisdiction.
In this context, it puts forward that the fine imposed on TW
was too high since past practice and the gravity of the infringe-
ment do not justify the level of the basic amount of the fine;
that the Commission erred in determining the duration of the
infringement for TW; and that the Commission failed to assess
whether the fines imposed on TW and the applicant complied
with the 10 % ceiling rule.

that

the applicant argues

With regard to the fine imposed on itself, the applicant also
contends that it is disproportionately high, taking into account
the lack of deterrent effect, the duration and the intensity of
the infringement. Further,
the
Commission erred in failing to reduce its liability in accordance
with the Leniency Notice, more particularly by failing to pass
the 30 % reduction granted to TW on to the applicant's own
liability and refusing to grant the applicant a reduction. Finally,
the applicant invokes the violation of the principle non bis in
idem and the principle according to which penalties should
relate to the specific circumstances of each applicant; in this
context, it points out that although it was the parent company
of TW for only 35 % of the period of the latter's involvement
in the cartel, it was made liable to pay 85.7 % of TW's fine.

Action brought on 24 February 2006 — FLSmidth v
Commission

(Case T-65/06)

(2006/C 96/43)

Language of the case: English

Parties

further submits that

The applicant
the Contested Decision
violates the principles of non-discrimination and proportion-
ality, to the extent that it held both the applicant and its own
parent company liable for TW's conduct, even though it
decided not to address the Contested Decision to intermediate
holding companies and did not,
in fact, address it to such
companies other than the applicant.

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

Defendant: Commission of the European Communities