Case T-59/06: Action brought on  23 February 2006  — Low & Bonar and Bonar Technical Fabrics v Commission
Date: 2006-02-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, liability, packaging product, parent company, plastics, restrictive trade practice, subsidiary

C 86/42

EN

Official Journal of the European Union

8.4.2006

— an order for a reduction in the amount of the fine imposed

on the applicant under the Decision;

Second, the applicant submits that the Commission erroneously
assessed the duration of Rosenlew Saint Frères Emballage parti-
cipation in the cartel activities.

— an order that the Commission reimburse the applicant for
the unduly paid portion of the fine, with interests starting
from the date of payment of the fine until full and final
reimbursement by the Commission; and

Third, the applicant contends that the Commission failed to
give proper consideration to the fact that the applicant was
held liable only in its capacity as parent company and, in so
doing, breached the principle of fairness.

— an order that the Commission pay for the costs of the

proceedings.

Fourth, the applicant submits that the Commission failed to
consider certain mitigating circumstances and wrongly attrib-
uted the aggravating circumstances of recidivism.

Pleas in law and main arguments

the substantive truth of

The applicant seeks the partial annulment of the Commission
Decision C(2005) 4634 final of 30 November 2005 in Case
COMP/F/38.354 — Industrial bags. The applicant does not
contest
the facts established, but
submits that the Decision contains various errors of assessment
of the facts concerning the applicant's subsidiary Rosenlew
Saint Frères Emballage and its role in the cartel activities, and
seeks a reduction of the amount of the fine imposed on the
ground that it is unjustified and disproportionate.

In support of its application, the applicant alleges errors of fact
in the application of Article 81(1) CE. The applicant submits
that the Decision is vitiated due to the absence of evidence of a
single and continuous infringement committed by Rosenlew
Saint Frères Emballage. Second, the applicant submits that the
Commission wrongly assessed the duration of the infringement.
According to the applicant, the Commission failed to establish
that Rosenlew Saint Frères Emballage took part in cartel activ-
ities in the block bags sector and participated in the Valveplast
meetings at the European level as of 20 December 2004. In
addition, the applicants states that there is insufficient proof of
Rosenlew Saint Frères Emballage's involvement in the meetings
of the French group on open mouth bags until 31 January
1999.

Finally, in relation to the setting of the final amount of the fine,
the applicant objects to the Commission's characterisation of
the cartel as a very serious infringement of the competition
rules, given the cartel's limited effect on competition and
geographical scope.

The applicant also submits a breach of the rights of defence in
that, during the administrative phase, it was not granted access
to certain relevant pieces of evidence that were relied upon by
the Commission to establish the duration and the scope of the
infringement committed by Rosenlew Saint Frères Emballage

Action brought on 23 February 2006 — Low & Bonar and
Bonar Technical Fabrics v Commission

(Case T-59/06)

(2006/C 86/81)

Language of the case: English

Parties

furthermore submits an infringement of

The applicant
the
general principles of proportionality, equal treatment and fair-
ness, and errors in assessment in setting the fine.

Applicants: Low & Bonar plc (Dundee, United Kingdom) and
Bonar Technical Fabrics NV (Zele, Belgium) [represented by: L.
Garzaniti, lawyer, M. O'Regan, Solicitor]

First, the applicant claims that the Commission exceeded the
limits of
its discretion under Article 23(3) of Regulation
1/2003 by setting a starting amount for its fine that is dispro-
portionate to the gravity of the infringement committed. In this
regard, the applicant challenges the application of a deterrent
factor of 2 and contends that the market share held in 1996 in
the industrial bags market covered by the overall cartel was not
the appropriate basis for calculating the basic amount of the
fine.

Defendant: Commission of the European Communities

Form of order sought

— Annul

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 it relates
to the applicants; or

8.4.2006

EN

Official Journal of the European Union

C 86/43

— in the alternative, annul in part Article 1(1) insofar as it
relates to the applicants and annul in part, or alternatively,
reduce as appropriate the fine imposed by Article 2 on the
applicants; and

— in the further alternative, reduce substantially the amount
of the fine imposed by Article 2 upon the applicants; and

— order the defendant to pay the costs of the proceedings,
including default
incurred by the applicants or
either of them associated with the payment in whole or
part of the fine; and

interest

— take any other measures that the Court considers to be

appropriate.

Pleas in law and main arguments

By the Contested Decision the Commission found that Bonar
Phormium Packaging (‘BPP’) had participated in a complex
cartel between manufacturers of plastic
industrial bags,
affecting Belgium, France, Germany, Luxembourg, the Nether-
lands and Spain. It also found that this cartel had been orga-
nised at the European level around a trade association known
as Valveplast, along with various sub-groups. It found the first
applicant liable for BPP's participation on the grounds that it
was the parent company of Bonar Phormium NV (‘BP’), of
which BPP was a division, and the second applicant liable on
the grounds that it was the legal successor to BP, with which it
had effected a legal merger. The Commission imposed a fine of
12.24 million EUR on the applicants.

The applicants further and alternatively submit that the fine
imposed by the Commission was excessive and dispropor-
tionate and infringed the principles of equal treatment and
non-discrimination and that the Commission committed other
errors of law and assessment in determining the level of the
fine and furthermore failed to provide reasons to justify its
calculation of the fine. In this context the applicants allege that
the Commission failed to appreciate that BPP had played an
the
exclusively passive and limited role and that,
Commission imposed a disproportionately and excessively high
basic amount.

further,

Action brought on 13 February 2006 — Italian Republic v
Commission

(Case T-61/06)

(2006/C 86/82)

Language of the case: Italian

Parties

Applicant(s):
Avvocato dello Stato)

Italian Republic (represented by: Paolo Gentili,

Defendant(s): Commission of the European Communities

The first applicant contends that the Commission committed
errors of law and assessment in finding it liable for the infringe-
ment committed by BPP. It alleges that, contrary to the findings
of the Contested Decision, it did not participate in the commer-
cial policy of BPP, whose management determined autono-
mously its conduct on the market.

Form of order sought

Both applicants further and alternatively contend that
the
Commission committed errors of law and assessment in finding
that the complex arrangement identified in the Contested Deci-
sion amounted to a single and continuous infringement of
Article 81 EC committed, at the European level, around Valve-
plast, alternatively in finding that BPP had participated in or
was otherwise aware of and thereby responsible for such an
infringement. According to the applicants, the Commission was
only entitled to find that BPP had participated in, or alterna-
tively was aware of and responsible for, arrangements covering
Belgium and the Netherlands and, of having participated in the
Valveplast cartel for one week only, i.e. between 21 November
1997, when a representative of BPP attended a Valveplast
meeting, and 28 November 1997 when, according to the
Contested Decision, BPP's participation came to an end.

The applicant(s) claim(s) that the Court should:

— Annul Memorandum No 12980 of 1.12.2005 concerning
interim costs and
the certification and declaration of
request for payment. SPD Veneto ob.2 2000-2006 (No CCI
2000 IT 16 2 DO 005);

— Annul Memorandum No 13683 of 13.12.2005 concerning
payments by the European Commission which differ from
the amount
requested. Ref SPD Programme Lombardy
2000-2006 (No CCI 2000 IT 16 2 DO 014);

— Annul Memorandum No 13684 of 13.12.2005 concerning
payments by the European Commission which differ from
the amount requested. Ref PEP Programme Puglia (No CCI
1999IT 16 1 PO 009);