Case T-378/06: Action brought on 14 December 2006 — IMI and Others v Commission
Date: 2006-12-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), exchange of information, fine, piping, price agreement, restriction on competition, trade information, unlawful agreement

C 20/30

EN

Official Journal of the European Union

27.1.2007

it

is claimed that

In their first plea, the applicants claim that the Commission
committed a manifest error of law and fact because it applied a
wrong legal standard in holding KPC and KPI liable for acts of
KPN and because it failed to provide adequate evidence under
the correct
the
legal standard. Precisely,
in the contested decision, found that both KPC
Commission,
and KPI are liable for the involvement of KPN's managers in the
Dutch bitumen cartel on the grounds that KPN is a wholly-
owned subsidiary of KPC and that each of KPC and KPI exercise
broad supervisory powers over KPN. The applicants submit that
a parent company may not be held liable on the basis of share-
holdings and broad supervisory powers alone, and that the
Commission must establish that the parent company exercised
sufficient control over the subsidiary's conduct on the market
affected by the infringement that it would be reasonable to
assume that
the subsidiary did not act autonomously with
respect to the infringement.

in their second plea, that the
The applicants further submit,
contested decision should be annulled or, in the alternative, the
fine reduced, because the Commission allegedly erred as a
matter of law in fining the applicants in contravention to the
2002 Leniency Notice (1), which provides that, when a leniency
applicant provides evidence relating to facts that were previously
unproven and those facts have a direct bearing on the gravity or
duration of the cartel, the Commission may not use such facts
against the leniency applicant.

in their

third plea,

the applicants submit

Finally,
the
Commission committed a manifest error of assessment in deter-
mining the percentage of the reduction in the fine pursuant to
the 2002 Leniency Notice, and accordingly argue that the fine
should be reduced by the maximum amount of 50 %.

that

(1) Notice on Immunity from Fines and Reduction of Fines in cartel

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

Action brought on 14 December 2006 — IMI and Others v
Commission

(Case T-378/06)

(2007/C 20/46)

Language of the case: English

Parties

Applicants: IMI plc (Birmingham, United Kingdom), IMI Kynoch
Ltd (Birmingham, United Kingdom), Yorkshire Fittings Limited

Italy),
(Leeds, United Kingdom), VSH Italia Srl
Aquatis France SAS (La Chapelle St. Mesmin, France), and
Simplex Armaturen + Fittings GmbH & Co. KG (Ravensburg,
Germany) (represented by: M. Struys and D. Arts, lawyers)

(Bregnano,

Defendant: Commission of the European Communities

Form of order sought

— Annul Articles 2(b)1. and 2(b)2. of

the
Commission of 20 September 2006 as amended by the deci-
sion of the Commission of 29 September 2006 relating to a
proceeding under Article 81 of the EC Treaty and Article 53
of the EEA Agreement (Case COMP/F-1/38.121 — Fittings
— C(2006) 4180 final);

the decision of

— alternatively reduce the fines imposed on the applicants; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission Deci-
sion C(2006) 4180 final of 20 September 2006 in Case COMP/
F-1/38.121 — Fittings, by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by fixing prices, agreeing on price lists, agreeing
on discounts and rebates, agreeing on implementation mechan-
isms for introducing price increases, allocating national markets,
allocating customers and exchanging other commercial informa-
tion.

In support of their application, the applicants submit that the
Commission has violated the principles of proportionality and
of non-discrimination as the fine imposed on the applicants in
the contested decision is excessive in terms of the size of the
applicants as well as of the relevant market when compared to
the Commission's approach in its previous decisions. By
including sales of press fittings in the size of
the relevant
market for the purpose of assessing the gravity of the infringe-
the Commission has committed a manifest error of
ment,
assessment.

The applicants further submit that the Commission committed
a manifest error of assessment by considering that the applicants
did not provide the evidence of the link between the UK and
pan-European arrangements. The Commission provided an
inadequate statement of reasons in that regard. Furthermore, by
refusing to grant the applicants a reduction in their fines for
their cooperation outside the Leniency Notice (1) for providing
evidence of a link between the UK and the pan-European cartel,
while granting the company FRA.BO a reduction in its fine on
the same basis for providing evidence of post-inspection conti-
nuation, the Commission breached the principle of equal treat-
ment.

27.1.2007

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Official Journal of the European Union

C 20/31

Moreover, the applicants contend that the Commission breached
Article 253 EC as the contested decision does not provide any
statement of reasons for imposing an additional amount of
EUR 2.04 million on the applicants Aquatis France and Simplex
Amaturen + Fittings.

Finally, the applicants allege that, by imposing a separate fine
upon Aquatis France and Simplex Amaturen + Fittings in addi-
tion to the fine already imposed on each of their predecessors
and current parent companies, the Commission breached the
principle ‘non bis in idem’ according to which no one can be
condemned twice for the same offence.

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

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

Action brought on 15 December 2006 — Vischim v
Commission

(Case T-380/06)

(2007/C 20/47)

Language of the case: English

Parties

Applicant: Vischim Srl. (Milan, Italy) (represented by: C. Mereu,
K. Van Maldegem, lawyers)

Defendant(s): Commission of the European Communities

Form of order sought

— Partial annulment of Commission Directive 2006/76/EC, in

particular Article 2, paragraph 2 thereof;

— order the defendant to comply with its obligations under
Community law and provide for accurate, reasonable and
legally acceptable prospective time limits; and

— order the defendant to pay all costs and expenses in these

proceedings.

Pleas in law and main arguments

By means of its application, the applicant seeks partial annul-
ment of Commission Directive 2006/76/EC (1), of 22 September
2006, and in particular its Article 2, paragraph 2, insofar as the
amended specification of the active substance Chlorothalonil
listed in Annex I to Directive 91/414/EEC (2) concerning the
placing of plant protection products on the market (hereinafter,
the ‘PPPD’) has not provided for reasonable time limits in line
with those given to other active substances under the current
review and instead provides for retroactive application of its
provisions.

The applicant claims that the Commission violated its legal
rights and legitimate expectations as a notifier and main data
submitter of Chlorothalonil within the meaning of the PPPD
and its implementing regulations, since no reasonable period
was granted before the amended specification of
the active
substance was included in Annex I during which Member States
and the applicant could prepare themselves to meet new
requirements. In that sense, the applicant submits that, instead
of allowing for an appropriate time period for its Chlorotha-
lonil-based product registrations to be properly assessed for re-
registration purposes in Member States, the contested measure
entered into force on 23 September 2006 and only prescribed
retroactive application of its provisions as of 1 September 2006
by reference to situations which already had produced legal
effects in the period up to 31 August 2006. Moreover, the appli-
cant submits that the contested measure is not in conformity
with the requirements established by the PPPD and that it lacks
sufficient statement of reasons in terms of Article 253 EC.
Finally, the applicant claims that the contested provision also
discriminates between the situation of the applicant and other
notifiers in the review process of existing active substances
without objective justification.

(1) Commission Directive 2006/76/EC, of 22 September 2006,
amending Council Directive 91/414/EEC as regards the specification
of the active substance chrothalonil; OJ L 263, p. 9

(2) Council Directive 91/414/EEC, of July 1991, concerning the placing
of plant protection products on the market; OJ 1991 L 230, p. 1

Action brought on 19 December 2006 — Icuna.com v
Parliament

(Case T-383/06)

(2007/C 20/48)

Language of the case: French

Parties

Applicant: Icuna.com SCRL (Braîne-le-Château, Belgium) (repre-
sented by: J. Windey and P. de Bandt, lawyers)

Defendant: European Parliament

Form of order sought

— annul

the decision of

the European Parliament of 1
December 2006, accepting the tender of the firm MOSTRA
and rejecting the applicant's tender within the framework of
the call for tenders EP/DGINFO/WEBTV/2006/2003;