Case T-186/06: Action brought on 17 July 2006 — Solvay 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, fine, oxide, price agreement, restriction on competition

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.

2.9.2006

EN

Official Journal of the European Union

C 212/39

Finally, the applicant claims that the Commission breached
essential procedural requirements and rights of defence by not
giving full access to the file and by not giving access to non-
confidential versions of replies to statements of objections of
other parties in the Commission procedure.

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002 C 45, p. 3)

(2) 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 2003 L 1, p. 1).

through legal misassessment of the content; according to the
applicant, the plant variety in respect of which application was
made is eligible for protection because it has the necessary
distinctiveness; Infringement of Article 76 of Regulation No
2100/94 on account of insufficient examination of the content,
and of Article 75 of that regulation for infringement of the
right to a fair hearing.

(1) Council Regulation (EC) No 2100/94 of 27 July 1994 on Com-

munity plant variety rights (OJ 1994 L 227, p. 1).

Action brought on 18 July 2006 — Ralf Schräder v Com-
munity Plant Variety Office

Action brought on 18 July 2006 — Arkema France v
Commission

(Case T-187/06)

(2006/C 212/68)

Language of the case: German

(Case T-189/06)

(2006/C 212/69)

Language of the case: French

Parties

Parties

Applicant(s): Ralf Schräder (Lüdinghausen, Germany)
(repre-
sented by: T, Leidereiter, W.-A. Schmidt and I. Memmler,
lawyers)

Applicant: Arkema France (Puteaux, France) (represented by: A.
Winckler, lawyer, S. Sorinas, lawyer, and P. Geffriaud, lawyer)

Defendant(s): Community Plant Variety Office (CPVO)

Defendant: Commission of the European Communities

Form of order sought

— Amendment of the decision by the Board of Appeal of the
CPVO of 2 May 2006 (Az. 003/2004) so as to allow the
applicant's appeal against the defendant's decision No R
446 and to grant plant variety right in respect of plant
variety right application SUMCOL 01(No 2001/0905);

— In the alternative, annulment of the decision by the defen-
dant's Board of Appeal of 2 May 2006 (Az. A003/2004)
with a direction to the defendant to make a fresh decision
on that application in the light of the judgment;

— In the alternative, annulment of the decision of the defen-
dant's Board of Appeal of 2 May 2006 (Az. A003/2004);

— The CPVO to pay the costs.

Pleas in law and main arguments

Community plant variety right at
application No. 2001/0905).

issue: SUMCOL 01 (Variety

Decision of the Committee: Rejection of the application.

Decision of the Board of Appeal: Dismissal of the appeal.

Grounds: In particular, infringement of Article 62 in conjunc-
tion with Article 7 of Council Regulation (EC) No 2100/94 (1)

Form of order sought

— on the basis of Article 230 EC, annul the decision adopted
by the Commission of 3 May 2006 in Case COMP/F/
38.620 in so far as it concerns Arkema;

— in the alternative, annul or reduce, on the basis of Artice
229 EC, the amount of the fine imposed upon it by that
decision;

— order the Commission pay to pay all the costs.

Pleas in law and main arguments

By the present 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, which included the applicant,
infringed Article 81(1) EC and Article 53 of the EEA Agree-
ment by participating in a complex of agreements and
concerted practices consisting of the exchange of information
between competitors and agreements on prices and production
capacities and also of supervision of the implementation of
those agreements in the hydrogen peroxide and sodium perbo-
rate sector. In the alternative, it seeks the annulment or reduc-
tion of the amount of the fine imposed on it by that decision.