Case T-192/06: Action brought on 18 July 2006 — Caffaro 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

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.