Case T-65/06: Action brought on  24 February 2006  — FLSmidth v Commission
Date: 2006-02-24
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, industrial product, packaging product, restrictive trade practice

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

C 96/26

EN

Official Journal of the European Union

22.4.2006

Form of order sought

— Primarily, annul

the Decision of

the Commission, no.
C(2005)4634, of 30 November 2005,
relating to a
proceeding under Article 81 EC, in case COMP/F/38.354 —
Industrial bags, in so far as it concerns the applicant;

— secondarily, set the amount of the fine of which the appli-
cant is held jointly and severally liable in Article 2 of the
above Decision at 0 EUR in so far as it concerns the appli-
cant;

— order the Commission to pay the costs.

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. Another company,
FLS Plast, of which the applicant was the holding company,
had owned shares of TW and, for most of the period for which
the applicant was found liable, TW was FLS Plast's wholly
owned subsidiary. A fine was imposed on TW, and the appli-
cant and FLS Plast were made jointly and severally liable for
part of that fine.

In support of its application, the applicant first of all contends
that the Commission did not correctly apply the test for liabi-
lity of the parent company, as it did not adduce evidence to the
effect that there existed circumstances, in respect of the appli-
cant, which could support a presumption of parental influence
on TW. The applicant also contends that,
in any case, the
Commission did not apply the correct legal test since a stricter
set of criteria is applicable in a situation such as the one in the
present case, where, according to the Commission, TW started
participating in the cartel
long before its acquisition by the
applicant's daughter company, and continued to do so after its
disposal. In any event, the applicant considers that it has estab-
lished that TW decided independently its own conduct on the
market and did not carry out instructions given to it by the
applicant.

the other groups comprised by the Decision had liability attrib-
uted to the operating subsidiary, a parent company and the
parent's parent company, as was the case with TW and the
applicant. Furthermore, even though TW had previously
belonged to another group, the Commission did not attribute
any liability for TW's participation in the cartel, on any
member of that other group. Finally, the liability attributed to
the applicant is disproportionate since the applicant was made
liable for 85.7 % of the fine imposed on TW even though it
had a shareholding in it for only 8 years out of a total of 20 in
which the latter was supposedly involved in the cartel.

The applicant also invokes the latter arguments in support of
its secondary claim, to have the fine imposed on it reduced. It
further argues that the fine imposed on it is excessive, since the
Commission failed to set a separate basic amount of the fine
for the applicant, taking into account its lack of responsibility.
It also contends that the Commission erred in law by not
taking into account certain attenuating circumstances in its
favour.

Finally, the applicant contends that the Commission committed
further errors in law by attributing liability to TW for the
period 1982 to 1988; imposing on the latter a fine which is
disproportionate, excessive and exceeds the 10 % of turnover
ceiling; and by not letting the applicant, as a secondary liable
party, benefit from the leniency granted to the principally liable
party, TW or, at least, granting an independent reduction of
fines to the applicant under the leniency notice.

Action brought on 23 February 2006 — JM Gesellschaft
für industrielle Beteiligungen v Commission

(Case T-66/06)

(2006/C 96/44)

Language of the case: German

Parties

Applicant: JM Gesellschaft für industrielle Beteiligungen mbH &
Co. KGaA (Worms, Germany) (represented by: H.-J. Hellmann,
lawyer)

The applicant also submits that attribution of liability to it is
discriminatory, disproportionate and arbitrary since none of

Defendant: Commission of the European Communities