Case T-189/06: Action brought on 18 July 2006 — Arkema France 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 212/39

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.

C 212/40

EN

Official Journal of the European Union

2.9.2006

In support of its claims, the applicant puts forward four pleas
in law.

Action brought on 19 July 2006 — Total and Elf Aquitaine
v Commission

By its first plea, the applicant submits that, by holding Elf Aqui-
taine and Total
liable for the infringement committed by
Arkema on the basis of a mere presumption linked to the fact
that almost all its capital was held by those companies at the
material time, the Commission made errors of law and fact in
the application of
the rules relating to holding a parent
company liable for practices implemented by a subsidiary and
it breached the principle of non-discrimination. The applicant
claims to have refuted that presumption of control during the
investigation. In addition, it argues that the Commission brea-
ched its duty to state reasons under Article 253 EC and also
the principle of good administration by not responding to all
the arguments expanded by the applicant in its response to the
statement of objections.

By its second plea, the applicant claims that the Commission
made an error of law in that it increased by 200 % the ‘starting
amount’ for Arkema's fine by way of a deterrent by taking as a
basis the turnover of Total and Elf Aquitaine,
the parent
companies at the material time, since one or both of those
companies could not, according to the applicant, be held liable
for the alleged breach. As a subsidiary argument in the context
of that plea, the applicant submits that, supposing that the
parent companies could be held liable for the breach,
the
Commission breached the principles of proportionality and
equal treatment by applying a multiplying factor of 3 (or an
increase by 200 %) to the ‘starting amount’ of the fine imposed
on Arkema by way of a deterrent.

legal certainty as regards

Thirdly, the applicant submits that it is in breach of law that
the decision increased the ‘basic amount’ of Arkema's fine by
50 % on the grounds of repeated infringement. It argues that
the application of the notion of repeated infringement is mani-
festly excessive in the present case and contrary to the principle
found by the
of
Commission on the basis of facts far removed from the present
time. Furthermore, the applicant alleges that the Commission
breached the principle of ‘non bis in idem’ and the principle of
proportionality, since the existence of earlier decisions against
it had already been taken into account on several occasions by
the Commission in other recent decisions in which it imposed
on Arkema an increase of
the fine by 50 % by virtue of
repeated infringement. The applicant claims that it is being
penalised again for the same acts.

infringements

Finally, it submits that the decision is well founded in neither
law nor fact, in so far as it did not grant the applicant a reduc-
tion greater than 30 % of the amount of the fine by virtue of
its cooperation during the proceedings. The applicant contends
that the Commission made a manifest error of assessment and
also an error of law in that it did not apply Title B of the
Leniency Notice (1) to grant it a reduction of the fine of 50 %.

(Case T-190/06)

(2006/C 212/70)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France)
(represented by: E. Morgan de Rivery,
lawyer, and A. Noël-
Baron, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission

Decision C(2006) 1766 final of 3 May 2006;

— in the alternative, amend Article 2(i) of Commission Deci-
sion C(2006) 1766 final of 3 May 2006, in so far as it
imposes a fine of EUR 78.663 million on Arkema SA, of
which Total SA is held jointly and severally liable for
EUR 42 million, and ELF Aquitaine SA for EUR 65.1
million, and reduce the amount of the fine in question to
an appropriate level;

— in any event, order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicants seek 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 applicants,
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, they seek the reduction of the
amount of the fine imposed on their subsidiary for which they
are held jointly and severally liable.

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

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

The main claim is based on ten pleas in law.

the applicants

Firstly,
the contested decision
breaches their rights to a defence and also the presumption of
innocence.

submit

that