Case T-217/06: Action brought on 10 August 2006 — Arkema and Others v Commission
Date: 2006-08-10
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

14.10.2006

EN

Official Journal of the European Union

C 249/13

Action brought on 10 August 2006 — Arkema and Others
v Commission

(Case T-217/06)

(2006/C 249/32)

Language of the case: French

Parties

Applicants: Arkema France SA (Puteaux, France), Altuglass Inter-
national SA (Puteaux, France) and Altumax Europe SAS
(Puteaux, France) (represented by: A. Winckler, S. Sorinas and
P. Geffriaud, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— on the basis of Article 230 EC, annul the decision adopted
by the Commission of the European Communities on 31
May 2006 in Case COMP/F/38.645 in so far as it concerns
Arkema;

— in the alternative, annul or reduce, on the basis of Article
229 EC, the amount of the fine imposed on it by that deci-
sion;

— order the Commission of the European Communities to

pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the annulment in
part of Commission Decision C(2006) 2098 final of 31 May
2006 (Case COMP/F/38.645 — Methacrylates) in so far as it
held the applicant's parent companies liable for the infringe-
ment which the applicant committed in breach of Article 81
EC and Article 53 of the EEA Agreement by participating in a
complex of agreements and concerted practices in the metha-
crylates sector consisting of discussions on prices, of the agree-
ment, implementation and monitoring of price agreements, of
the exchange of commercially important and confidential
market and/or company relevant information, and also of parti-
cipation in regular meetings and other contacts to facilitate the
infringement. In the alternative, the applicant seeks a reduction
in the amount of the fine imposed on it by the contested deci-
sion.

In support of its principal claims, the applicant argues that, by
holding its parent companies liable for the infringement
it
committed, 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 infringements committed by its subsidiary
and also infringed the principle of non-discrimination. The
applicant also takes the view that, by failing to respond to the

the administrative
arguments it advanced in the course of
procedure which sought to show that
it enjoyed complete
autonomy in determining its commercial policy, and this
its share
despite the parent companies' holding almost all
capital at the material time, the Commission acted in breach of
its duty to state reasons under Article 253 EC and the principle
of good administration.

In the alternative, the applicant seeks the annulment or reduc-
tion of the fine imposed on it by the contested decision. In
it puts forward several
support of its claims in this regard,
pleas alleging inter alia errors of law and fact committed by the
Commission when fixing the starting amount of the fine. The
applicant argues that this amount is excessive since the infrin-
gement, it maintains, had only a very limited impact on the
product markets at issue. The applicant argues further that the
Commission acted in breach of the duty to state reasons and
the principle of good administration in taking the view that the
actual impact of the infringement on the market should not be
taken into account when determining the starting amount of
the fine.

Furthermore, the applicant submits that the Commission erred
in fact and in law by increasing by 200 % the starting amount
of the fine by way of a deterrent by taking as a basis the turn-
over of its parent company at the material time, since that
company could not, according to the applicant, be held liable
for the infringement in the light of the commercial autonomy
the applicant enjoyed at the material time and of the fact that
the directors of the parent companies were not involved in the
practices at issue.

The applicant also claims that in order to increase the level of
the fine imposed on it, the Commission took into account deci-
sions against it from 1984, 1986 and 1994 and that, in so
doing, its application of the notion of repeated infringement
was manifestly excessive and contrary to the principles of
lawful punishment and legal certainty. Moreover, the applicant
argues that by applying the principle of repeated infringement,
the Commission acted in breach of 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 recent deci-
sions.

The applicant further submits that the Commission made an
error of fact in that it did not grant a reduction in the fine on
account of the fact that certain offending practices were not
actually implemented.

By its final plea, the applicant asserts that the Commission
should also have taken into account, when fixing the amount
of the fine, by way of other factors, the fact that the applicant
was recently ordered to pay significant fines.