Case T-185/06: Action brought on 17 July 2006 — L'Air Liquide v Commission
Date: 2006-07-17
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, chemical salt, control of restrictive practices, exchange of information, oxide, price agreement, restriction on competition

2.9.2006

EN

Official Journal of the European Union

C 212/37

An advance of payment was made by the Commission to the
parties associated in the project, including ICN, through a coor-
dinator, NCSR ‘Demokritos’. Subsequently,
the coordinator
requested ICN's contribution in accordance with the tasks
defined in the project. Since that contribution was not made
and ICN's representative informed the coordinator of financial
difficulties encountered by ICN, the coordinator contacted the
company Dane-Elec Memory, the guarantor of ICN's obliga-
tions. The director of Dane-Elec Memory informed the coordi-
nator that ICN was going to withdraw from the project and
repay the advances. Having received no confirmation in writing
of that withdrawal or the commitment to repay, the coordi-
nator of the project and the Commission sent ICN a demand
for repayment of
the advances made. Since that demand
received no reply, a request to honour the financial guarantee
in accordance with its commitments in the letter of guarantee
was sent to Dane-Elec Memory. It refused to honour that guar-
the contractual default was not
antee on the ground that
proven by the Commission. That refusal was repeated in spite
of the fact that the Commission gave reasons for its demand.

On the basis of the arbitration clauses contained in Contract
IST-2000-25366 between ICN and the Commission and in the
letter of guarantee issued by Dane-Elec Memory in favour of
the Commission, the Commission brought this action seeking
an order that Dane-Elec Memory pay the Commission the
amount of the advances paid to ICN plus interest for late
payment, in pursuance of the ‘upon first demand’ guarantee. In
the alternative, the applicant seeks an order that ICN repay the
advance made by the Commission plus
late
payment, for non-fulfilment of its contractual obligations in
connection with the ‘Crossmarc project’.

interest

for

(1) Call for expression of interest published in OJ 1999 C 12, p. 5.

Action brought on 17 July 2006 — L'Air Liquide v
Commission

(Case T-185/06)

(2006/C 212/66)

Language of the case: French

Parties

Applicant: L'Air Liquide SA (Paris, France) (represented by: R.
Saint Esteben and M. Pittie, lawyers)

Defendant: Commission of the European Communities

Form of order sought by the applicant

The applicant claims that the Court should:

— declare the action admissible;

— annul Article 1(i) of Commission Decision C (2006) 1766
final of 3 May 2006 relating to a proceeding pursuant to
Article 81 EC and Article 53 of the EEA Agreement (Case
COMP/F/38.620 — Hydrogen peroxide and perborate) in
so far as it decided that L'Air Liquide infringed Article 81
EC and Article 53 EEA between 12 May 1995 and 31
December 1997;

— consequently, annul Articles 2(f) and 4 of Commission
Decision C (2006) 1766 final of 3 May 2006, as regards
L'Air Liquide;

— order the Commission to pay all the costs incurred by the

applicant in connection with this action.

Pleas in law and main arguments

By this action, the applicant seeks the partial annulment of
Commission Decision C (2006) 1766 final of 3 May 2006 in
Case COMP/F/38.620 — Hydrogen peroxide and perborate, by
which the Commission found that the undertakings to which
the decision was addressed, including the applicant, infringed
Article 81(1) EC and Article 53 of the EEA Agreement by parti-
cipating in a number of agreements and concerted practices
consisting in exchanges of information between competitors
and agreements on prices and production capacities as well as
monitoring the implementation of those agreements in the
hydrogen peroxide and sodium perborate sector.

In support of its claims, the applicant relies on four pleas in
law.

By its first plea in law, the applicant claims that the Commis-
sion made a manifest error of assessment in deciding that the
matters which it put forward in order to presume L'Air Liquide
its
jointly and severally liable because of
subsidiary were sufficient having regard to the criteria estab-
lished by the case-law and that
the Commission therefore
misapplied the rules governing the attribution to a parent
company of the conduct of its subsidiary and thus infringed
Article 81 EC.

the conduct of

By its second plea in law, the applicant claims that by wrongly
invoking the presumption of attribution with regard to L'Air
Liquide, the Commission also improperly reversed the burden
of proof and thus infringed the applicant's right
to a fair
hearing.

By its third plea in law, the applicant argues that, even if the
Court of First Instance considers that the Commission was justi-
fied in presuming the attribution to L'Air Liquide of
the
conduct of its subsidiary Chemoxal, the Commission failed to
fulfil its obligation to state its reasons in that it did not discuss
any of the evidence put forward by L'Air Liquide to demon-
strate Chemoxal's
reversed that
presumption of joint and several liability, which is only a rebut-
table presumption.

independence

and thus

C 212/38

EN

Official Journal of the European Union

2.9.2006

By its fourth plea in law, the applicant maintains that the
Commission has not shown sufficiently in law and fact its legit-
imate interest in bringing proceedings against the applicant in
the present proceedings by adopting, in spite of the time-bar
on its power to penalise L'Air Liquide, a decision establishing
L'Air Liquide's commission of an infringement of Article 81(1)
EC and Article 53 of the EEA Agreement and that in default of
such a legitimate interest, the Commission therefore had no
power to adopt such a decision against the applicant.

Action brought on 17 July 2006 — Solvay v Commission

(Case T-186/06)

(2006/C 212/67)

Language of the case: English

Parties

Applicant: Solvay S.A. (Brussels, Belgium) (represented by: O.W.
Brouwer, D. Mes, lawyers, M. O'Regan and A. Villette, Solici-
tors)

Defendant: Commission of the European Communities

Form of order sought

— Annul, in full or in part, Articles 1, 2 and 3 of the Euro-
pean Commission's Decision of 3 May 2006 relating to a
proceeding under Article 81 of the EC Treaty (Case COMP/
F/38.620 — Hydrogen peroxide and perborate) insofar as it
relates to the applicant, in particular insofar as it finds that
the applicant infringed Article 81(1) of the EC Treaty and
Article 53(1) of the EEA Agreement (a) between 31 January
1994 and August 1997 and (b) between 18 May and 31
December 2000;

— annul or substantially reduce the fines imposed on the
applicant and on Solvay Solexis SpA pursuant to the deci-
sion;

— order the defendant to pay the costs of the proceedings,
including costs incurred by the applicant associated with
payment in whole or part of the fine or constituting a bank
guarantee;

Pleas in law and main arguments

By the contested decision the Commission found that the appli-
cant had infringed Article 81 EC and Article 53 of the Agree-
ment on the European Economic Area by participating in a
hydrogen peroxide
cartel, which
consisted mainly of exchanges between competitors of informa-
tion on prices and sales volumes, agreements on prices, agree-
ments on reduction of production capacity in the EEA and
monitoring of the anti-competitive arrangements.

and sodium perborate

The applicant contends that the Commission was entitled to
find that Solvay had infringed Article 81 EC between August
1997 and 18 May 2000, but that the Commission committed
infringements of law and manifest errors of assessment in the
application of Article 81 EC finding that Solvay committed an
infringement, on the one hand, between 31 January 1994 and
August 1997 and, on the other, between 18 May and 31
December 2000. These infringements and manifest errors of
assessment relate in particular to:

a) the misapplication of the concepts of ‘agreement’, ‘concerted

practice’ and ‘single and continuous infringement’;

b) failing to prove to the requisite standard the applicant's
participation in a cartel other than in the periods admitted
by the applicant;

c) presuming continuing anti-competitive effects after 18 May

2000; and

d) failing to analyse properly the evidence in its file in relation

to the above periods.

further submits that

The applicant
the Commission, when
calculating the fine, has made several infringements of law and
manifest errors of assessment in applying its 2002 Leniency
Notice (1) and Regulation No 1/2003 (2), including in relation
to:

a) the timing of applications for a reduction of fines and/or

the provision of significant added value there under;

b) the assessment of the added value of the evidence provided

by the applicant; and

c) the level of the reduction of the fine accorded to the appli-
cant, which according to Solvay manifestly failed to take
account of the extent of the evidential value contributed by
it, as well as its substantial and continuous cooperation.

Furthermore, the applicant alleges that the fine was excessive
the Commission failed to
and disproportionate and that
provide any, alternatively any sufficient, reasons to justify its
calculation of the fine.

— take any other measures that the Court considers to be

appropriate.

More over, the applicant submits that the Commission unlaw-
fully imposed a fine upon the applicant's subsidiary, Solvay
Solexis SpA.