Case T-199/06: Action brought on 17 July 2006 — Akzo Nobel and Others v Commission
Date: 2006-09-02
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 212/45

Action brought on 18 July 2006 — FMC v Commission

(Case T-197/06)

(2006/C 212/76)

Language of the case: English

d) the Commission used evidence which it had not notified to
the applicant as forming the basis of the case against the
company, thereby denying the applicant the opportunity of
exercising its rights of defence.

Parties

Action brought on 17 July 2006 — Akzo Nobel and
Others v Commission

Applicant: FMC Corporation (Philadelphia, USA)
by: C. Stanbrook, Q.C., and Y. Virvilis, lawyer)

(represented

Defendant: Commission of the European Communities

(Case T-199/06)

(2006/C 212/77)

Language of the case: English

Form of order sought

— Annul Commission Decision C(2006) 1766 final of 3 May

2006, in so far as it applies to FMC Corporation; and

Parties

— in the alternative reduce the fine imposed on FMC Corpora-

tion; and

— order the Commission to bear the costs of these present

proceedings.

Applicants: Akzo Nobel NV (Arnhem, Netherlands), Akzo Nobel
Chemicals Holding AB (Nacka, Sweden), Eka Chemicals AB
(Bohus, Sweden) (represented by: C. Swaak, N. Neij, lawyers)

Defendant: Commission of the European Communities

Pleas in law and main arguments

The applicant seeks partial annulment of the Commission's
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 applicant had infringed Article 81
EC and Article 53 of
the Agreement on the European
Economic Area by participating in a cartel, which consisted
mainly of exchanges between competitors of information on
prices and sales volumes, agreements on prices, agreements on
reduction of production capacity in the EEA and monitoring of
the anti-competitive arrangements.

The applicant invokes two pleas in law in support of its appli-
cation and contends in general that it is not liable for the
infringements of its subsidiary Foret as it did not exercise a
decisive influence over the subsidiary.

Firstly, the applicant claims that the contested decision is inade-
quately reasoned.

Secondly, the applicant submits that the contested decision is
flawed both in law and in fact as:

a) the Commission's conclusions were based on a misconstruc-
tion of the evidence, on wrongful discrimination in giving
different weight to different sources of oral evidence, and
generally on a manifest error of assessment;

b) the Commission used the wrong legal test of control for the
purposes of determining the applicant's responsibility for
the infringement of Foret;

c) the Commission used evidence which did not relate to the

period of the alleged infringement; and

Form of order sought

— Annul the fine imposed on the applicants in the contested
decision, or, in subsidiary order, to increase by 10 % the
40 % reduction granted under the Leniency Notice;

— order the Commission to pay its own costs and those of the

applicants.

Pleas in law and main arguments

The applicants seek the annulment of the fine imposed on
them by 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 applicants
had infringed Article 81 EC and Article 53 of the Agreement
on the European Economic Area by participating in a cartel,
which consisted mainly of exchanges between competitors of
information on prices and sales volumes, agreements on prices,
agreements on reduction of production capacity in the EEA
and monitoring of the anti-competitive arrangements. The two
applicants Akzo Nobel Chemicals Holding AB and Akzo Nobel
NV are held jointly and severally liable for the infringement
committed by the applicant Eka Chemicals AB (‘Eka’).

The applicants submit that the Commission has breached the
obligation to state reasons pursuant to Article 253 EC in not
stating any reason for granting only a 40 % reduction of the
fine within a band of 30-50 % despite the far-reaching compli-
ance of Eka's cooperation with the criteria of the Leniency
Notice (1).

C 212/46

EN

Official Journal of the European Union

2.9.2006

In the alternative, the applicants seek an increase of 10 % of
the 40 % reduction of the fine granted under the Leniency
Notice on the ground that the Commission misapplied the
Leniency Notice in that Eka was not granted the highest reduc-
tion available within the relevant band, notwithstanding the
fact that its cooperation fully met the criteria established at
point 23, second paragraph, of the Leniency Notice. According
to the applicants, the Commission therefore violated the appli-
cant's legitimate expectations.

Furthermore,
the applicants contend that
violated the principle of equal treatment in that it treated:

the Commission

i) similar situations, i.e. that of Eka and Arkema who's coop-
eration fully met the criteria in point 23 of the Leniency
Notice,
in a different manner by granting the maximum
reduction available within the relevant band only to
Arkema, and

ii) different situations, i.e. that of Eka and Solvay, in a similar
manner by granting both a reduction of the fine which is
not the highest reduction available under the relevant band
even though Eka, according to the applicants, had contrib-
uted more valuable and timely cooperation than Solvay.

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

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

Order of the Court of First Instance of 27 June 2006 —
Marker Völkl v OHIM — Icon Health & Fitness Italia
(MOTION)

(Case T-217/05) (1)

(2006/C 212/79)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be
removed from the register.

(1) OJ C 205, 20.8.2005.

Order of the Court of First Instance of 5 July 2006 —
Deutsche Telekom v OHIM (Alles, was uns verbindet)

(Case T-18/06) (1)

(2006/C 212/80)

Language of the case: German

The President of the Fourth Chamber has ordered that the case
be removed from the register.

(1) OJ C 86, 8.4.2006.

Order of the Court of First Instance of 29 June 2006 —
UNIPOR-Ziegel-Marketing v OHIM-Dörken (DELTA)

(Case T-159/05) (1)

(2006/C 212/78)

Language of the case: German

The President of the Fifth Chamber has ordered that the case be
removed from the register.

Order of the Court of First Instance of 6 July 2006 —
Cofira-Sac v Commission

(Case T-43/06) (1)

(2006/C 212/81)

Language of the case: Italian

(1) OJ C 171, 9.7.2005.

The President of the Second Chamber has ordered that the case
be removed from the register.

(1) OJ C 86, 8.4.2006.