Case T-196/06: Action brought on 19 July 2006 — Edison v Commission
Date: 2006-07-19
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 212/44

EN

Official Journal of the European Union

2.9.2006

In support of its claims, the applicant argues that the penalty
imposed on it by the decision which is the subject-matter of
the action should be regarded as wrongly set, owing to:

— incorrect assessment of the duration of the infringement,
which took place from May/September 1997 to May 2000
and not, as regards the applicant itself, from May 1995 to
December 2000;

— incorrect assessment concerning the main effect on and
application to the market of the infringement and of the
passive role played by the applicant,
in the period from
May 1995 to May/September 1997 inclusive;

— non-participation of the applicant in the agreement on the
limitation of capacity. When imposing the penalty the
Commission disregarded the fact
that Ausimont never
joined, either in 1997 or subsequently, the agreement on
the restriction/limitation of production capacity. The infrin-
gement attributable to Ausimont is therefore less serious
than that committed by other undertakings on account of
its lesser effect on competition, and also in accordance with
the fundamental principles of equal treatment, fairness and
proportionality;

— failure to take into account its cooperation.

In fact the
defendant did not grant
the applicant any benefit with
regard to its cooperation, or as a result of its participation
in the leniency programme, or in respect of the mitigating
circumstance provided for by the Guidelines.

Finally, the applicant claims infringement of the principle of
proportionality.

Action brought on 19 July 2006 — Edison v Commission

(Case T-196/06)

(2006/C 212/75)

Language of the case: Italian

Parties

(represented by: Mario Siragusa,
Applicant(s): Edison S.p.A.
Roberto Casati, Matteo Beretta, Pietro Merlino and Eugenio
Bruti Liberati, lawyers,)

Defendant(s): Commission of the European Communities

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 affects the applicant.

— In the alternative, annulment or reduction of
imposed on Edison by the contested decision.

the fine

— 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. That decision held the appli-
cant jointly and severally liable for the infringement committed
by Ausimont for the whole duration of its participation in the
cartel, and fined it EUR 58 125 000 for that
infringement,
EUR 25 619 000 of which jointly and severally with Solvay
Solexis S.p.A.. That latter company is currently controlled by
Solvay SA/NV, but, at the time of the infringement, under the
it was indirectly controlled by
name of Ausimont S.p.A.,
Montedison (now Edison).

In support of its arguments, the applicant argues:

— Infringement of essential procedural requirements, espe-
cially of the principle that both sides should be heard and
of the rights of the defence; infringement of Article 27(1) of
Regulation (EC) No 1/2003 and of Article 11(2) of Regu-
lation (EC) No 773/2004, for using for the first time in the
decision, in support of its accusations, the fact that, for a
large part of the infringement period, the managing director
of Ausimont was also a board member of Montecatini, i.e.
the intermediate company entirely controlled by Monte-
dison (now Edison), which held the entire company capital
of Ausimont.

— Infringement of Article 81 of the EC Treaty by wrongly
imputing to the applicant the infringement of the competi-
tion rules committed by Ausimont. First, the Commission
erred in concluding that entire ownership of the capital of
an undertaking is sufficient to give rise to the presumption
that the controlling company exercises a determining influ-
ence on the controlled company, so that the former may be
regarded as jointly and severally liable for the infringement
committed by the latter. Secondly, the applicant argues that
the contested decision is self-contradictory and insufficient
in its reasoning, and that Article 81 of the EC Treaty has
been infringed in relation to the conclusion that,
in this
case, there were ‘other elements’ present which indicated
that Ausimont was not an autonomous entity capable of
deciding its own commercial strategy.

The applicant also claims that there has been infringement of
in that the Commission failed to
the duty to state reasons,
consider all the documentary proofs and factual circumstances
adduced by Edison in support of the contention that Ausimont
was independent in determining its own commercial policies.