Case T-191/06: Action brought on 18 July 2006 — FMC Foret v Commission
Date: 2006-07-18
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

2.9.2006

EN

Official Journal of the European Union

C 212/41

Secondly, they contend that the contested decision, in so far as
it finds them liable for the disputed breach committed by their
subsidiary, breaches the obligation to state reasons,
firstly
because the reasoning of the Commission, which the applicants
consider to be partially contradictory,
is insufficiently devel-
oped, having regard to the novelty of the position adopted in
regard to them, and, secondly, because the Commission, by
refusing to respond, ignored the specific factors put forward by
in the
the applicants to justify their lack of
management of the subsidiary.

involvement

that

the contested decision
The applicants also consider
breaches the unitary nature of the concept of an undertaking
within the meaning of Article 81 EC and Article 23(2) of Regu-
lation 1/2003 (1), and also the rules which govern whether
breaches committed by a subsidiary can be imputed to its
parent company. As regards that plea, the applicants claim that
the Commission has disregarded the restrictive guidelines of
the Community Courts regarding its power to hold a parent
company liable for breaches committed by its subsidiary. It also
adopted an interpretation of the case-law relating to imput-
its decision-
ability which was incorrect and went against
making practice. According to the applicants, the Commission
also breached the principle of independence of legal persons.

The applicants consider in addition that the Commission made
manifest errors of assessment by incorrectly applying to Total
the presumption of
imputability and by considering, when
assessing the repetition of the breaches, that Total's subsidiary
fined by the contested decision had always belonged to it.

the applicants contend that

Furthermore,
the Commission
infringed several essential principles that are recognised by the
Member States and which form part of Community law, such
as the principle of non-discrimination, the principle of liability
for one's own acts, the principle of the individual nature of
penalties and the principle of legality.

The applicants also submit that the contested decision compro-
mises the principles of good administration and legal certainty.

The applicants finally consider that the Commission infringes
the rules governing the calculation of fines such as the prin-
ciple of equal treatment, in so far as it does not apply a reduc-
tion of 25 % to the starting amount of the fine imposed on the
applicants whereas it did apply it to another undertaking to
which the contested decision was addressed. According to the
applicants, the contested decision also exceeds the limits placed
on the Commission's power regarding the taking into account
the
of
presumption of innocence and the principle of legal certainty.

the deterrent effect,

the principle of

in breach of

Lastly, the applicants claim that the contested decision consti-
tutes a misuse of powers in that it holds them liable for the
breach committed by their subsidiary and penalises them
jointly and severally with it.

In the alternative, the applicants consider that the fine imposed
upon their subsidiary, and for which they are held jointly and
severally liable, should be reduced to a fair level. They seek to

obtain a reduction of 25 % in the starting amount of the fine
imposed upon them and also to rely on mitigating circum-
stances in that they were ordered to pay large fines almost
simultaneously in two similar cases.

(1) 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

Action brought on 18 July 2006 — FMC Foret v Commis-
sion

(Case T-191/06)

(2006/C 212/71)

Language of the case: English

Parties

Applicant: FMC Foret S.A. (Sant Cugat del Vallés, Spain) (repre-
sented by: M. Seimetz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annulment of Commission Decision C(2006)1766 final of
3 May 2006 relating to a proceeding under Article 81 EC
and Article 53 of
(Case COMP/F/
38.620 — Hydrogen peroxide and perborate) in so far as it
imposes a fine on the applicant;

the EEA Agreement

— in the alternative, reduce the fine imposed on the applicant,

and

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

seeks

annulment

its application,

the applicant, as far as it

is
By means of
concerned,
of Commission Decision
C(2006)1766 final of 3 May 2006 in Case COMP/F/38.620 —
Hydrogen peroxide and perborate, on the basis of which the
the undertakings concerned had
Commission found that
infringed Article 81(1) EC and Article 53 of the EEA Agree-
ment by participating in a single and continuous infringement
regarding hydrogen peroxide and sodium perborate, covering
the whole EEA territory, which consisted mainly of exchanges
information on prices and sales
between competitors of
volumes, agreements on prices, agreements on reduction of
production capacity in the EEA and monitoring of the anti-
competitive arrangements.

C 212/42

EN

Official Journal of the European Union

2.9.2006

In support of its claims for a reduction of charges, the applicant
mainly contends the evidentiary standard set by the Commis-
sion on its behalf and, secondly, pleads violation of its rights of
defence.

The applicant,
first, claims the Commission has failed to
discharge the burden of proof and has not engaged in a reason-
able appraisal of the evidence relating to the existence of a
cartel. Thus, the applicant criticises the Commission for having
relied on vague and uncorroborated allegations contained in
leniency applications submitted by other undertakings, despite
its Hearing Officer concerns.

The applicant
further submits that both its testimony and
evidence produced at various instances of the procedure in
order to demonstrate the falsity of submissions against it went
unchallenged, to be finally rejected by the Commission without
justification.

The applicant, secondly, accuses the Commission of having
wrongfully withheld evidence from it. In this respect,
it was
allegedly denied the right of defence with regards to access in
the replies given to the Commission's Statement of Objections,
while it claims to have demonstrated,
its
refusal to participate in cartel activities.

in its own reply,

Finally, FMC Foret estimates the fine levied by the Commission
against it excessive and disproportionate with regard to its
turnover and given the wholly passive role it claims to have
played in the alleged cartel.

Action brought on 18 July 2006 — Caffaro v Commission

(Case T-192/06)

(2006/C 212/72)

Language of the case: Italian

— In the alternative, reduction of the fine on Caffaro S.r.l. to a

symbolic amount.

— Further in the alternative, substantial reduction of the fine
on Caffaro S.r.l., taking account of the short duration of the
infringement and of attenuating circumstances

— The Commission to pay the costs.

Pleas in law and main arguments

The contested decision in this case is the same as in Case T-
185/06 L'air Liquide v Commission.

In support of its arguments, the applicant argues:

— that it should be regarded as a victim rather than a partici-
pant in the hydrogen peroxide cartel. In assessing Caffaro's
position in the proceeding in question, the Commission
entirely failed to take account of the fact that, far from prof-
the the
iting from the cartel
market in sodium perborate precisely as a consequence of
the unlawful agreements made on the hydrogen peroxide
market. The applicant emphasised to the Commission that
it manufactured only sodium perborate, that it was merely
a customer for hydrogen peroxide, and that it could there-
fore not be a member of the hydrogen peroxide cartel but
rather a victim of it.

in question, Caffaro quit

— that the Commission made an obvious error by using for
all the participants in the infringement, save the applicant,
overall market shares in 1999, the last full year of the
infringement concerning both products (sodium perborate
and hydrogen peroxide). Surprisingly, in relation to Caffaro,
the Commission used instead market data for 1998,
whereas, according to settled case-law,
the Commission
must, for the purpose of assessing the specific weight of an
undertaking, take into consideration the turnover achieved
by each undertaking during the reference year. The case-law
has interpreted that principle to the effect that only the use
of a common reference year for all the undertakings partici-
pating in the same infringement guarantees equal treat-
ment.

Parties

The applicant also argues:

Applicant(s): Caffaro S.r.l. (represented by: Alberto Santa Maria
and Claudi Biscaretti di Rufia, lawyers,)

Defendant(s): Commission of the European Communities

— Infringement of defence rights in that, contrary to what the
Commission maintains, representatives of Caffaro did not
participate in the meeting in Brussels of 26 November
1998.

Forms of order sought

— Annulment of Commission Decision C(2006) 1766 final of
3 May 2006 in Case COMP/F/38.620 — Hydrogen peroxide
and sodium perborate in so far as it imposes on Caffaro S.r.l.,
jointly
fine of
EUR 1 078 000.

and severally with SNIA S.p.A.,

a

— Misapplication of Article 25 of Regulation (EC) No 1/2003,
and of
inasmuch as
the time-limit contained therein,
Caffaro ceased participation in the presumed arrangement
more than five years before the commencement of the
Commission's investigation in relation to Caffaro.