Case T-190/06: Action brought on 19 July 2006 — Total and Elf Aquitaine 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 212/40

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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

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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.