Case T-42/07: Action brought on 16 February 2007 — Dow Chemical and Others v Commission
Date: 2007-02-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), exchange of information, fine, price agreement, restriction on competition, rubber industry, trade information, unlawful agreement

14.4.2007

EN

Official Journal of the European Union

C 82/47

— declare the act of a doctor of 13 July 2004 prohibiting the
appellant from access to the Commission's buildings void
and illegal on the grounds that it is not a decision of the
Appointing Authority;

— declare the act of a Commission official of 22 September
2004 purporting to extend the appellant's medical leave by
six months and other subsequent acts referring to earlier
documents by an official of the Appointing Authority of
June 2004 void;

— the remainder of the claims before the first court;

— order the Commission to pay the costs.

Pleas in law and main arguments

In his appeal, the appellant claims that the Tribunal committed
an error by founding its decision on an incorrect legal basis,
namely Article 59 of
the Staff Regulations on compulsory
medical leave, whereas, the Commission infringed Article 86 of
the Staff Rules and Annex IX, together with the texts which
regulate the conduct of administrative investigations and disci-
plinary proceedings. Furthermore, the appellant argues that the
Tribunal violated his rights of defence and infringed Article 6 of
the European Convention on Human Rights and the principle
of the right to a fair trial by hearing and determining the case
on the basis of an incomplete file and by failing to give a ruling
on the alleged existence of a parallel file. The appellant further
claims that the Tribunal has infringed Article 8 of the European
Convention on Human Rights by hearing and determining the
case on the basis of false evidence. Furthermore, the appellant
criticises the Tribunal for failing to adopt a position in the
contested judgment on his application to reopen the proceed-
ings. The applicant also submits that the Tribunal unlawfully
refused to draw the legal
inferences from the alleged lack of
competence of the authority which issued the decision to place
him on compulsory medical leave which the Tribunal should,
the appellant argues, have declared non-existent on the ground
of lack of competence and lack of reasoning.

Action brought on 16 February 2007 — IPK International
— World Tourism Marketing Consultants v Commission

(Case T-41/07)

(2007/C 82/99)

Language of the case: German

Form of order sought

The applicant claims that the Court should

— annul

the decision of

the Commission of

the European
Communities of 4 December 2006 (C (2006) 6452) on the
recovery of payments in the amount of EUR 318 000
together with default interest;

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

Pleas in law and main arguments

The applicant contests the Commission's decision C (2006)
6452 of 4 December 2006 on the recovery of advance
payments received by the applicant for the ECODATA project
before the cancellation of the decision to award the grant. The
decision was made pursuant to Article 256 EC.

The cancellation of the decision to grant a subsidy for the crea-
tion of a databank on ecological tourism in Europe was made
by decision of the Commission of 13 May 2005 and was chal-
lenged by the applicant before the Court of First Instance (see
Case T-297/05).

The applicant argues in support of its claim that the contested
decision is unlawful. It derives from an unlawful cancellation
decision, the unlawfulness of which necessarily extends to the
contested decision. Furthermore,
the contested decision is a
unilateral measure, although the legal claim arising from that
decision is contractual in nature and can therefore be pursued
only by means of a civil claim before the competent national
courts of a Member State.

Action brought on 16 February 2007 — Dow Chemical
and Others v Commission

(Case T-42/07)

(2007/C 82/100)

Language of the case: English

Parties

Applicants: The Dow Chemical Company (Midland, United Sates
of America), Dow Deutschland Inc.
(Schwalbach, Germany),
Dow Deutschland Anlagengesellschaft mbH (Schwalbach,
Germany), Dow Europe GmbH (Horgen, Switzerland)
(repre-
sented by: D. Schroeder, P. Matthey, T. Graf, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant:
Consultants GmbH (Munich, Germany)
C. Pitschas, lawyer)

IPK International — World Tourism Marketing
(represented by:

Form of order sought

Defendant: Commission of the European Communities

to annul the decision insofar as it relates to it;

— The Dow Chemical Company respectfully requests the Court

C 82/48

EN

Official Journal of the European Union

14.4.2007

— Dow Deutschland Inc. respectfully requests the Court to
annul Article 1 of the decision insofar as it finds that Dow
Deutschland Inc. infringed Articles 81 EC and 53 EEA from
1 July 1996;

the differential treatment applied by the Commission to the
starting amounts, the multiplier applied by the Commission in
order for the fines to have sufficient deterrent effect and, finally,
to the increase of the starting amount of the fines in view of the
duration of the infringement.

— all applicants (and the Dow Chemical Company in the alter-
native) respectfully request the Court to substantially reduce
their fines;

— all applicants respectfully request the Court

— to order the Commission to pay the applicants' legal and
other costs and expenses in relation to this matter as
well as the costs incurred by the applicants in providing
a bank guarantee in lieu of the applicants' fines pending
judgment by this Court; and

— to take any other measures that this Court considers

appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek partial annul-
ment of Commission Decision C(2006) 5700 final of
29 November 2006 in Case COMP/F/38.638 — Butadiene
Rubber and Emulsion Styrene Butadiene Rubber, by which the
together with other
Commission found that
undertakings had infringed Article 81 EC and Article 53 EEA
by agreeing on price targets for the products, sharing customers
by non-aggression agreements
sensitive
and
information relating to prices, competitors and
commercial
customers in the Butadiene Rubber and Emulsion Styrene Buta-
diene Rubber sectors.

the applicants,

exchanging

In support of their application, the applicants advance three
principal pleas:

By the first plea, divided into three branches, The Dow Chemical
Company (hereinafter ‘TDCC’) submits that
the Commission
erred in law; a) in finding that TDCC had committed an infrin-
gement based on the
a wholly-owned
subsidiary essentially follows the instructions given by the
parent company without verifying whether the parent company
had in fact exercised such power; b) in imposing a fine on it,
holding it responsible for infringements committed by its subsi-
diaries; and c) without exercising its discretion,
in deciding
whether or not to address its decision to TDCC.

assumption that

By the second plea,
the Dow Deutschland Inc. and TDCC
contend that the Commission erred in fact and law in deter-
mining the duration of Dow Deutschland Inc.'s participation in
the infringement by choosing 1 July 1996 as the starting date
of the infringement.

By the third plea, the applicants claim that the Commission
made factual and legal errors in calculating the basic amount of
the fines imposed on them. Precisely, errors were allegedly made
in relation to the assessment of the gravity of the infringement,

Appeal brought on 14 February 2007 by Neophytos
Neophytou against
the Civil Service
the judgment of
Tribunal delivered on 13 December 2006 in Case F-22/05,
Neophytou/Commission

(Case T-43/07 P)

(2007/C 82/101)

Language of the case: English

Parties

Appellant: Neophytos Neophytou (Itzig, Luxembourg)
sented by S. A. Pappas, lawyer)

(repre-

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— Cancel

the

appealed decision and,

subsequently,

the

contested decision of the appointing authority;

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

Pleas in law and main arguments

By means of this appeal, the appellant is seeking to set aside the
Civil Service Tribunal's conclusions in Case F-22/05 finding
that, on one hand,
the
hearing were inadmissible and, on the other hand, that there
was no infringement of the principle of non-discrimination.

the appellant's complaints made at

In support of his first plea, the appellant contends that his argu-
ment concerning the composition of the selection board should
have been admissible since it was based on new matters of fact
which only came to light during the oral hearing according to
the appellant. The latter claims, moreover, that the illegal consti-
tution of an organ is a question of competence and thereby
should have been examined ex officio. Accordingly, the appel-
lant submits he should not have been bared from raising this
new matter.