Case T-206/06: Action brought on 4 August 2006 — Total and Elf Aquitaine v Commission
Date: 2006-08-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, chemical salt, control of restrictive practices, fine, oxide, price agreement, restriction on competition

28.10.2006

EN

Official Journal of the European Union

C 261/19

COURT OF FIRST INSTANCE

Assignment of Mr Wahl and Mr Prek to Chambers

(2006/C 261/36)

At its plenary meeting on 9 October 2006, the Court of First
Instance decided, following the taking up of their duties by Mr
Wahl and Mr Prek, to amend as follows the decision of the
plenary meeting of 5 July 2006 on the assignment of Judges to
Chambers:

For the period from 9 October 2006 to 31 August 2007, the
following are assigned:

to the First Chamber (Extended Composition), sitting with five Judges:

Mr Vesterdorf, President, Mr Cooke, Mr García-Valdecasas, Ms
Labucka and Mr Prek, Judges;

to the First Chamber, sitting with three Judges:

Mr Cooke, President of the Chamber, Mr García-Valdecasas, Ms
Labucka and Mr Prek, Judges;

to the Fourth Chamber (Extended Composition), sitting with five
Judges:

Mr Legal, President of the Chamber, Ms Wiszniewska-Białecka,
Mr Vadapalas, Mr Moavero Milanesi and Mr Wahl, Judges;

to the Fourth Chamber, sitting with three Judges:

Mr Legal, President of the Chamber

a) Mr Vadapalas and Mr Wahl, Judges

b) Ms Wiszniewska-Białecka and Mr Moavero Milanesi, Judges

Action brought on 4 August 2006 — Total and Elf Aqui-
taine v Commission

(Case T-206/06)

(2006/C 261/37)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France)
(represented by: E. Morgan de Rivery, lawyer, and S. Thibault-
Liger, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— principally, annul Articles 1(c) and (d), 2(b), 3 and 4 of
Commission Decision C(2006) 2098 final of 31 May 2006;

— in the alternative, amend Article 2(b) of Commission Deci-
sion C(2006) 2098 final of 31 May 2006, in so far as it
imposes jointly and severally on Arkema SA, Altuglas Inter-
national
fine of
EUR 219.13125 million, for which Total SA and Elf Aqui-
taine are held jointly and severally liable for EUR 140.4
million and EUR 181.35 million respectively, and reduce
the amount of the fine in question to an appropriate level;

SA and Altumax Europe

SAS

a

— 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 annulment in
part of Commission Decision C(2006) 2098 final of 31 May
2006, by which the Commission found that the undertakings
to which the decision was addressed, which included the appli-
cants, infringed Article 81 EC and Article 53 of the EEA Agree-
ment (Case COMP/F/38.645 — Methacrylates) by participating
in a complex of agreements and concerted practices in the
methacrylates sector consisting in discussions on prices, the
conclusion,
implementation and monitoring of price agree-
ments, exchanges of commercially important information and
confidential
information on markets and/or undertakings as
well as the participation in regular meetings and other contacts
to facilitate the infringement. In the alternative, they seek the
reduction of
the fine imposed on their
subsidiary for which they are held jointly and severally liable.

the amount of

The main claim is based on nine pleas for annulment.

The first plea alleges an infringement of the rights of the
defence and the principle of the presumption of innocence.
The applicants submit that the contested decision was adopted
following an administrative procedure during which they could
not mount a useful defence to the extent that the Commission
did not discharge its burden of proof, thus ignoring the prin-
ciple of equality of arms.

In the second plea, they submit that the contested decision
ignored the obligation to state reasons, which is made even
greater, according to the applicants, by the alleged novelty of
the position adopted by the Commission. They point out that
the contested decision, in so far as it censures them for the
infringement at issue committed by their subsidiary, bases the
imputation of responsibility solely on the assumption of a
determining influence of the applicants on their subsidiary on
the ground that they hold virtually all of the subsidiary's share
capital, without any consideration of facts that might support
or refute this assumption. Furthermore, the applicants submit
that the contested decision contains a number of contradictions
that result from confusion between the concept of an under-
taking/economic entity responsible for an infringement and the
concept of a legal entity to which a decision is addressed. In
the context of this plea, the applicants also complain that the
Commission failed to respond sufficiently to their arguments
regarding the independence of their subsidiary.

C 261/20

EN

Official Journal of the European Union

28.10.2006

By the third plea, the applicants point out that in its decision
the Commission acted in breach of the unitary nature of the
concept of an undertaking within the meaning of Article 81 EC
and Article 23(2) of Regulation No 1/2003 (1).

In the fourth plea, the applicants claim that the Commission
infringed the rules governing whether breaches committed by a
subsidiary can be imputed to its parent company. The appli-
cants submit that the Commission disregarded the limits of its
power as regards determining imputability by adopting an
interpretation of the case-law relating to imputability which
was incorrect and went against its decision-making practice.
According to the applicants, the Commission also acted in
breach of the principle of the independence of legal persons.

The fifth plea alleges infringement of the essential principles
recognised by all the Member States and which form an inte-
gral part of the Community legal order 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 prin-
ciple of legality.

In the sixth plea, the applicants submit that the Commission
infringed the principle of good administration.

Action brought on 4 August 2006 — Europig v OHIM
(EUROPIG)

(Case T-207/06)

(2006/C 261/38)

Language in which the application was lodged: French

Parties

Applicant: Europig (Josselin, France) (represented by: D. Masson,
lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— annul the contested decision of the Board of Appeal of 31

May 2006 (R 1425/2005-4);

— order OHIM to pay the costs in their entirety.

The seventh plea alleges infringement by the Commission of
the principle of legal certainty on the part of the applicants.

Pleas in law and main arguments

By the eighth plea, the applicants contend that the contested
decision constitutes a misuse of powers in that it holds them
liable for the cartel at issue and orders them severally with
their subsidiary to pay the fine.

In their ninth plea, the applicants consider that the Commission
infringed certain fundamental principles that govern the calcu-
lation of fines such as the principle of equal treatment in so far
as it did not apply a reduction 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 because of a lack of knowledge of the overall infrin-
gement. The applicants also allege infringement of the funda-
mental principles of the presumption of innocence and legal
certainty which result, according to them, from a disregard for
the limits placed on the Commission's power regarding the
taking into account of deterrent effect.

In the alternative, the applicants consider that the fine imposed
on 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
because of their lack of knowledge of the infringement and also
to rely on mitigating circumstances in that they were ordered
to pay large fines almost simultaneously in two similar cases.

Community trade mark concerned: Word mark ‘EUROPIG’,
goods in Classes 29 and 30 (Application No 3 816 691)

for

Decision of the examiner: Refusal of the application

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 7(1)(b) and (c), (2) and (3)
of Council Regulation No 40/94. The applicant claims that the
mark applied for is not descriptive of the goods designated, is
fully distinctive and that, in any event, the distinctive character
of the name 'Europig' has been acquired through use.

Action brought on 26 August 2006 — Budějovický
Budvar v OHIM — Anheuser-Busch (BUD)

(Case T-225/06)

(2006/C 261/39)

Language in which the application was lodged: French

(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)

Parties

Applicant: Budějovický Budvar, národní podnik (České Budějo-
vice, Czech Republic) (represented by: F. Fajgenbaum, lawyer)