Case T-314/01: Judgment of the Court of First Instance of 27 September 2006 –Avebe v Commission (Competition — Agreements, decisions and concerted practices — Sodium gluconate — Article 81 EC — Fine — Liability of the parent company for the unlawful conduct of an association without its own legal personality — Article 15(2) of Regulation No 17 — Rights of the defence — Exculpatory documents — Principle of proportionality — Obligation to state reasons)
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), chemical industry, economic concentration

2.12.2006

EN

Official Journal of the European Union

C 294/39

COURT OF FIRST INSTANCE

Judgment of the Court of First Instance of 27 September
2006 — GlaxoSmithKline Services v Commission

(Case T-168/01) (1)

(Competition — Wholesale distribution of medicines —
Parallel trade — Differentiated prices — Article 81(1) EC —
Agreement — Restriction of competition — Object — Rele-
vant market — Effect — Article 81(3) EC — Contribution to
the promotion of technical progress — No elimination of
competition — Evidence — Statement of reasons — Subsi-
diarity)

(2006/C 294/82)

Language of the case: English

Parties

Applicant: GlaxoSmithKline Services Unlimited, formerly Glaxo
Wellcome plc (Brentford, Middlesex, United Kingdom) (repre-
sented by S. Martínez Lage, lawyer, I. Forrester QC, F. Depoor-
tere, A. Schultz, T. Louko and I. Vandenborre, lawyers)

Defendant: Commission of the European Communities (repre-
sented by: initially P. Oliver, then É. Gippini Fournier, Agents,)

Interveners in support of the defendant: European Association of
Euro Pharmaceutical Companies (EAEPC)
(Brussels, Belgium))
(represented:
initially by U. Zinsmeister and M. Lienemeyer,
then by A. Martin-Ehlers, and finally by M. Hartmann-Rüppel,
lawyers); Bundesverband der Arzneimittell-Importeure
eV,
initially
(Mülheim an der Ruhr, Germany)
by M. Epping and W. Rehmann,
then by W. Rehmann,
lawyers); Spain Pharma, SA, (Madrid, Spain) (represented by:
P. Muñoz Carpena, B. Ortúzar Somoza and R. Gutiérrez
Sánchez,
lawyers); and Asociación de exportadores españoles
de productos farmacéuticos (Aseprofar), (Madrid, Spain) (repre-
sented:
then
initially by M. Araujo Boyd and R. Sanz,
by M. Araujo Boyd and J.L. Buendia Sierra, lawyers)

(represented:

Re:

(notification),

to Article 81 of the EC Treaty (Cases IV/36.957/F3 Glaxo Well-
Fedifar
come
IV/
(complaint),
37.138/F3 BAI
IV/37.380/F3 EAEPC
(complaint));

IV/36.997/F3 Aseprofar
IV/37.121/F3 Spain Pharma (complaint),
and

(complaint)

and

2. Dismisses the remainder of the application;

3. Orders GlaxoSmithKline Services Unlimited to bear one half of its
the costs incurred by the

own costs and to pay one half of
Commission, including those relating to the interventions;

4. Orders the Commission to bear one half of its own costs and to
pay one half of the costs incurred by GlaxoSmithKline Services,
including those relating to the interventions;

5. Orders the Asociación de exportadores españoles de productos
farmacéuticos (Aseprofar), the Bundesverband der Arzneimittell-
Importeure eV, the European Association of Euro Pharmaceutical
Companies (EAEPC) and Spain Pharma, SA, to bear their own
costs.

(1) OJ C 275, 29.9.2001.

Judgment of the Court of First Instance of 27 September
2006 –Avebe v Commission

(Case T-314/01) (1)

(Competition — Agreements, decisions and concerted prac-
tices — Sodium gluconate — Article 81 EC — Fine — Liabi-
lity of the parent company for the unlawful conduct of an
association without its own legal personality — Article 15(2)
of Regulation No 17 — Rights of the defence — Exculpatory
documents — Principle of proportionality — Obligation to
state reasons)

Annulment of Commission Decision C(2001) 1202 final of 8
May 2001 relating to a proceeding pursuant to Article 81 of
the EC Treaty (Cases IV/36.957/F3 Glaxo Wellcome (notifi-
cation),
IV/36.997/F3 Aseprofar and Fedifar (complaint), IV/
37.380/F3 EAEPC (complaint)) — Spain Pharma (complaint),
IV/37.138/F3 — BAI (complaint) and IV/37.380/F3 — EAEPC
(complaint)) (OJ 2001 L 302, p. 1)

Parties

(2006/C 294/83)

Language of the case: Dutch

Operative part of the judgment

The Court:

Applicant: Coöperatieve Verkoop- en Productievereniging van
Aardappelmeel en Derivaten Avebe BA (Veendam, Netherlands)
(represented by: C. Dekker, lawyer)

1. Annuls Articles 2, 3 and 4 of Commission Decision
2001/791/EC of 8 May 2001 relating to a proceeding pursuant

Defendant: Commission of the European Communities (repre-
sented by: A. Bouquet, A. Whelan and W. Wils, Agents, assisted
by M. van der Woude, lawyer)

C 294/40

EN

Official Journal of the European Union

2.12.2006

Re:

Operative part of the judgment

Annulment of Article 1 of Decision C(2001) 2931 of 2
October 2001 concerning a procedure under Article 81 of the
Treaty and Article 53 of the EEA Agreement (Case No COMP/E
1/36.756 — Sodium Gluconate), in so far as it pertains to the
applicant or, in the alternative, annulment of Article 3 of that
decision in so far as it pertains to the applicant

Operative part of the judgment

The Court:

1. Dismisses the action;

The Court:

1. Sets the amount of the fine imposed on Roquette Frères SA at

EUR 8 105 000;

2. Varies Decision C(2002) 2931 final of 2 October 2001 relating
to a proceeding pursuant to Article 81 of the EC Treaty and
Article 53 of
(COMP/E-1/36.756 —
Sodium gluconate) in so far as it is inconsistent with paragraph 1
above;

the EEA Agreement

3. Dismisses the remainder of the application;

4. Orders Roquette Frères SA to pay all of the costs.

2. Orders

the Coöperatieve Verkoop- en Productievereniging van

Aardappelmeel en Derivaten Avebe BA to pay the costs.

(1) OJ C 68, 16.3.02.

(1) OJ C 68, 16.3.2002.

Judgment of the Court of First Instance of 27 September
2006 — Archer Daniels Midland v Commission

Judgment of the Court of First Instance of 27 September
2006 — Roquette Frères v Commission

(Case T-329/01) (1)

(Case T-322/01) (1)

(Competition — Agreements, decisions and concerted prac-
tices — Sodium gluconate — Article 81 EC — Fine —
Article 15(2) of Regulation No 17 — Guidelines on the
method of setting fines — Leniency notice — Equal treat-
ment Principle ne bis in idem)

(Competition — Cartels — Sodium Gluconate — Article 81
EC — Fine — Article 15(2) of Regulation No 17 — Guide-
lines on the method of setting fines — Leniency Notice —
Principle of proportionality — Equal treatment — Non-retro-
activity — Obligation to state reasons — Rights of the
defence)

(2006/C 294/84)

Language of the case: French

(2006/C 294/85)

Language of the case: English

Parties

Applicant: Roquette Frères, SA (Lestrem, France)
by: O. Prost, D. Voillemot and A. Choffel, lawyers)

(represented

Defendant: Commission of the European Communities (repre-
sented by: initially, A. Bouquet, W. Wils and A. Whelan, and
subsequently A. Bouquet, W. Wils and A. Whelan, Agents,
assisted by A. Condomines and J. Liygonie, lawyers)

Parties

Applicant: Archer Daniels Midland Co. (Decatur, Illinois, United
States) (represented by: C.O. Lenz, lawyer, L. Martin Alegi, M.
Garcia and E. Batchelor, Solicitors)

Defendant: Commission of the European Communities (repre-
sented by: A. Whelan, A. Bouquet and W. Wils, Agents)

Re:

Re:

the EEA Agreement

First, an application for annulment of Articles 1 and 3 of Deci-
sion C(2002) 2931 final of 2 October 2001 relating to a
proceeding pursuant to Article 81 of the EC Treaty and Article
53 of
(COMP/E-1/36.756 — Sodium
gluconate), in that it sets the amount of the fine imposed on
the applicant; second, an application for a reduction in the
amount of the find; and, third, an application for repayment to
the applicant of the amounts unlawfully received.

Application for annulment of Article 1 of Commission Deci-
sion C(2001) 2931 final of 2 October 2001 relating to a
proceeding under Article 81 of the EC Treaty and Article 53 of
the EEA Agreement (Case COMP/E-1/36.756 — Sodium Gluco-
nate) in so far as it pertains to the applicant, or at least to the
extent that it finds the applicant was party to an infringement
after 4 October 1994, and for annulment of Article 3 of that
decision in so far as it pertains to the applicant or, in the alter-
native, annulment or reduction of the fine imposed on it by the
decision.