Case T-344/06: Action brought on 4 December 2006 — TOTAL v Commission
Date: 2006-12-04
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), bituminous materials, fine, inter-company agreement, oil industry, road building, unlawful agreement

27.1.2007

EN

Official Journal of the European Union

C 20/17

Pleas in law and main arguments

The applicants argue that the following elements of the decision
are based on errors of law and errors of assessment:

(a) the finding that Shell Verkoopmaatschappij BV was an insti-

gator and leader of the cartel;

(b) the attribution of liability for the infringement to The Shell
Transport and Trading Company Ltd and Shell Petroleum
NV;

(c) the increase in the fine for repeated infringement;

(d) the calculation of the starting amount for Shell Nederland

Verkoopmaatschappij BV;

(e) the duration of the infringement.

Action brought on 4 December 2006 — TOTAL v
Commission

(Case T-344/06)

(2007/C 20/24)

Language of the case: French

Parties

Applicant: TOTAL SA (Courbevoie, France) (represented by: A.
Gosset-Grainville, L. Godefroid and A. Lamothe, avocats)

Defendant: Commission of the European Communities

Form of order sought

— annul, pursuant to Article 230 EC, the Commission Deci-
sion of 13 September 2006 in Case COMP/F/38.456 —
Bitumen — Netherlands) in so far as it concerns TOTAL SA
in Articles 1(m), 2(m), 3 and 4;

— alternatively, annul Articles 1(m) and 2(m) and reduce
accordingly the amount of the fine imposed on TOTAL SA
by the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Deci-
sion C(2006) 4090 final of 13 September 2006 relating to a
proceeding under Article 81 EC (Case COMP/F/38.456 —
Bitumen — Netherlands) concerning a body of agreements and
concerted practices designed to fix, for sales and purchases of
road bitumen in the Netherlands, the gross price, a uniform
rebate on the gross price for participating road builders and a

smaller maximum rebate on the gross price for other road
builders. Alternatively,
least a
substantial reduction in the amount of the fine imposed on it
by the contested decision.

it seeks the annulment or at

The application contains five pleas.

First, the applicant states that the Commission infringed the
rules relating to the accountability of a parent company for the
practices of its subsidiary. It claims that the Commission acted
wrongly when it attributed to the applicant the infringement at
issue which was committed by its subsidiary TOTAL Nederland
NV and, therefore, held the applicant jointly and severally liable
for the infringements. The applicant considers that the Commis-
sion committed an error of law in finding that the fact that the
applicant held 100 % of the capital of its subsidiary was suffi-
cient for it to have decisive influence over it. The applicant also
alleges that the Commission committed an error of
law in
failing to undertake a serious examination of all the evidence
showing which entities within the TOTAL Group might have
been responsible for the practices at issue.

Secondly, the applicant accuses the Commission of infringing
the rules of evidence in failing to prove that the applicant exer-
its
cised a decisive influence over the commercial policy of
subsidiary, TOTAL Nederland NV, on the relevant market, and
in failing to take account of information which TOTAL SA
submitted to enable it
to delineate the undertaking in the
TOTAL Group which was concerned.

Also, the applicant considers that the Commission infringed the
principle that it must not act in an arbitrary manner, when it
stated in the contested decision that it had a discretion when
deciding which entities within an undertaking it considered to
be responsible for an infringement.

Finally, the applicant states that the Commission infringed the
principle of good administration in failing to send requests for
information to the applicant during the investigation stage.

least reduction of

Alternatively, the applicant relies on two pleas in support of its
application for annulment or at
the fine
imposed on it in the contested decision. It considers that the
Commission infringed the rules applicable to the setting of
fines. It states that,
if the acts should have been imputed to
TOTAL SA, the date taken by the Commission to fix the starting
point for the applicants' participation in the infringement is not
correct and the Commission has failed to give sufficient grounds
for its decision on this point. The applicant claims moreover
that the Commission failed to respect the principle of propor-
tionality when it applied a multiplier for deterrence of 1.5,
based on the worldwide turnover of TOTAL Group for the
period of
that no ground for
complaint was attributed to the applicant for a part of the said
period.

reference, despite the fact