Case T-381/06: Action brought on 15 December 2006 — FRA.BO v Commission
Date: 2006-12-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), copper, exchange of information, fine, plumbing equipment, price agreement, restriction on competition, trade information

24.2.2007

EN

Official Journal of the European Union

C 42/29

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

(Case T-379/06)

(2007/C 42/50)

Language of the case: German

Fourthly, it is submitted, in the alternative, that the calculation
of the fine reveals a misuse of powers in that it was based on an
excessive duration of the infringement and that the applicants
did not benefit from mitigating circumstances.

Finally, the applicants maintain that the Commission infringed
the principle of proportionality with the amount of the fine
imposed.

Parties

Applicants: Kaimer GmbH & Co. Holding (Essen, Germany),
SANHA GmbH & Co. KG (Essen, Germany) and Sanha Italia srl.
(Milan, Italy) (represented by: J. Brück, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul

the defendant's decision C(2006) 4180 final of
20 September 2006, as amended by the defendant's decision
of 29 September 2006, served on applicants 1 to 3 on
5 October 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);

— in the alternative, reduce the duration of the alleged infringe-
ment by applicants 1 to 3 in Article 1 of the decision and
cancel or reduce the fine imposed on applicants 1 to 3 in
Article 3 of the decision;

Action brought on 15 December 2006 — FRA.BO v
Commission

(Case T-381/06)

(2007/C 42/51)

Language of the case: English

Parties

Applicant: FRA.BO SpA (Milan, Italy) (represented by: R. Celli
and F. Distefano, lawyers)

— order the defendant to pay costs.

Defendant: Commission of the European Communities

Pleas in law and main arguments

The applicants are challenging Commission Decision C(2006)
4180 final of 20 September 2006 in Case COMP/F-1/38.121 —
Fittings. In the contested the decision a fine was imposed on the
applicant for breach of Article 81(1) EC and Article 53(1) of the
EEA Agreement. According to the Commission, the applicants
took part in a series of agreements in the form of price-fixing,
establishing price lists and rebates, establishing mechanisms for
the implementation of price increases, dividing up markets and
customers and exchanging other economic information on the
market for copper fittings and copper alloy fittings.

The applicants put forward five pleas in support of their claims.

it is submitted,

First of all,
in particular, that the defendant
based its reasoning on documents, in respect of which the appli-
cants were not granted a fair hearing.

Form of order sought

— Annul Article 2 of Commission Decision of 20 September
2006 (Case COMP/F-1/38.121 — Fittings — C(2006) 4180
final) relating to a proceeding under Article 81 EC, insofar
as it relates to the amount of the fine imposed on the appli-
cant;

— reduce the fine imposed on the applicant under the Court's

jurisdiction; and

— order the Commission to pay the costs of the proceedings,

including those of the applicant.

Pleas in law and main arguments

Secondly, the applicants submit that the Commission infringed
the duty to state reasons under Article 253 EC. According to
the applicants the contested decision is not adequately reasoned
on the ground that the facts at issue were not properly assessed.
In addition, exculpatory facts were not taken into account and
evidence was incorrectly evaluated.

Furthermore, the applicants criticise the fact that the facts, as
established by the Commission, were deemed to be a complex
infringement contrary to Article 81(1) EC.

The applicant seeks 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 applicant, 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.

C 42/30

EN

Official Journal of the European Union

24.2.2007

The applicant challenges the contested decision on the following
grounds:

Pleas in law and main arguments

— The applicant claims, first, that the Commission made a
manifest error of appreciation and breached fundamental
principles of law in making an improper and unlawful appli-
cation of the principles of the 2002 Leniency Notice (1).

— The applicant further claims, that the Commission made a
manifest error of appreciation by granting FRA.BO a dispro-
portionately low reduction of 20 per cent under the 1996
Leniency Notice, and infringed the fundamental principles of
proportionality,
legitimate expectations and duty to state
reasons.

(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 — Tomkins v
Commission

(Case T-382/06)

(2007/C 42/52)

Language of the case: English

Parties

Applicant: Tomkins plc (London, United Kingdom) (represented
by: T. Soames and S. Jordan, solicitors)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of Commission Decision of 20 September
2006 (Case COMP/F-1/38.121 — Fittings — C(2006) 4180
final) relating to a proceeding pursuant to Article 81 EC and
Article 53 of the EEA Agreement, insofar as it relates to the
applicant; or in the alternative

— amend Article 2(h) of the contested decision so as to reduce

the fine imposed on the applicant and on Pegler; and

— order the Commission to pay the costs of the proceedings.

The applicant seeks annulment of Article 1 of Commission
Decision C(2006) 4180 final of 20 September 2006 in Case
COMP/F-1/38.121 — Fittings, by which the Commission found
the applicant, jointly and severally liable with Pegler Ltd for an
infringement of Article 81 EC in the Copper Fittings industry
from 31 December 1988 to 22 March 2001 and ordered it to
pay a fine of EUR 5.25 million. In the alternative, the applicant
seeks to amend Article 2(h) of the contested decision.

The applicant contends that the Commission infringed Article
230 EC on the following grounds:

First, the Commission has allegedly breached the rules governing
the responsibility of parent companies for the acts of
their
subsidiaries by holding the applicant jointly and severally liable
for the conduct of Pegler, one of the applicant's former subsidi-
aries. In that sense, the applicant claims that the Commission
made a manifest error in law by incorrectly stating the legal
basis for parent company liability and incorrectly applying the
test for shareholder liability in a factual setting where it should
not apply. Moreover, the applicant submits that the Commission
erred in relying on the applicant's alleged scope of business in
the construction sector as relevant to the question of whether
the applicant was purely a financial investor delegating opera-
tional responsibility to Pegler at the local business unit level.
Further still, the Commission's elimination of its own burden to
establish shareholder liability and the raising of the burden for
the shareholder in this case infringes the principle of presump-
tion of innocence.

Second, the applicant alleges that the Commission committed a
manifest error of fact and has failed to prove to the requisite
legal standard any decisive influence by the applicant on the
commercial conduct of Pegler. According to the applicant's
submissions the facts do not establish the applicant's liability
either under (a) the correct law that was either not applied or
misapplied by the Commission, or (b) the incorrect
law as
stated by the Commission.

Third, the applicant contends that the Commission has failed to
state adequately why the evidence submitted by the applicant
was insufficient to rebut the presumption of decisive influence.

Fourth, the applicant maintains that the Commission applied
the wrong standard in imposing an uplift for deterrence, and
failed properly to assess the evidential basis for calculating the
length of Pegler's participation in the cartel, thus arriving at an
unfounded and inaccurate determination of the duration of the
infringement.