Case T-39/07: Action brought on 6 February 2007 — ENI 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 82/45

Action brought on 16 February 2007 — Shell Petroleum
and Others v Commission

(Case T-38/07)

(2007/C 82/96)

Language of the case: English

Parties

Applicants: Shell Petroleum NV (The Hague, The Netherlands),
Shell Nederland BV (The Hague, The Netherlands) and Shell
Nederland Chemie BV (Rotterdam, The Netherlands)
(repre-
sented by: T. Snoep and J. Brockhoff, lawyers)

Defendant: Commission of the European Communities

Form of order sought

SPNV requests the Court:

— to annul the decision, in full, insofar as it is addressed to

SPNV;

— in the alternative:

— to annul Article 2(d) of the decision, or

— to reduce the fine imposed as appropriate; and

— to order the Commission to pay the costs.

SNBV requests the Court:

In support of their application, the applicants submit that the
Commission violated Article 81 EC and Articles 7 and 23(2)
and (3) of Council Regulation No 1/2003 (1) by:

a) imputing the infringement also to Shell Petroleum NV and
Shell Nederland BV even though the Commission acknowl-
edges that only Shell Nederland Chemie BV participated
directly in the infringement;

b) increasing the basic amount of the fine to be imposed on the
applicants by 50 % for recidivism in breach of the principles
of proportionality and legal certainty;

c) applying a multiplier for deterrence in breach of the princi-

ples of equal treatment and proportionality; and

d) setting the starting amount of the fine to be imposed on the
applicants in breach of the Guidelines on the method of
setting fines (2) and the principles of proportionality and
equal treatment.

In the alternative, the applicants invoke a violation of the duty
to state reasons under Article 253 EC.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2) Commission Notice of 14 January 1998 entitled ‘Guidelines on the
method of setting fines imposed pursuant to Article 15(2) of Regu-
lation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9,
p. 3).

— to annul the decision, in full, insofar as it is addressed to

Action brought on 6 February 2007 — ENI v Commission

SNBV;

— in the alternative:

— to annul Article 2(d) of the decision, or

(Case T-39/07)

(2007/C 82/97)

— to reduce the fine imposed as appropriate; and

Language of the case: Italian

— to order the Commission to pay the costs.

SNC requests the Court:

— to annul Article 2(d) of the decision or to reduce the fine

imposed as appropriate; and

— to order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment 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 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 agreeing on price targets for the products,
sharing customers by non-aggression agreements and exchan-
ging commercial information relating to prices, competitors and
customers.

Parties

Applicant: ENI SpA (Rome,
G.M. Roberti and I Perego, lawyers)

Italy)

(represented by: Prof.

Defendant: Commission of the European Communities

Form of order sought

— annul that part of the contested decision which holds the
applicant responsible for the conduct that is being penalised;

— annul or reduce the fine imposed under Article 2 of the

decision;

— order the Commission to pay the costs.

C 82/46

EN

Official Journal of the European Union

14.4.2007

Pleas in law and main arguments

The present action is brought against the same decision that is
contested in Case T-38/07 Shell Petroleum and Others v Commis-
sion.

ENI considers the contested decision to be unlawful in that it
imputes liability to it solely on the ground of its role as the
head of the group which controls the entire share capital of the
company that has been held liable for the alleged collusion
complained of. In those circumstances, the applicant submits
that:

— the Commission has based its decision essentially on an a
presumption of strict liability connected to ownership struc-
ture that is not borne out and is contrary to the principles
laid down by practice and in Community case-law relating
to the application of Article 81 EC in connection with
groups of companies. Such an approach also breaches the
basic principle that liability and penalties must be specific to
the offender and the principle of legality, being the result of
clear errors of assessment of the factual material provided by
ENI to rebut the Commission's presumption. In this connec-
tion, the Commission failed properly to state the reasons for
its assessment, in breach of the requirement laid down in
Article 253 of the EC Treaty.

the principle of

— moreover, the contested decision does not even take into
the limited liability of capital
account
companies to be found in company law that is common to
the laws of all the Member States, to international legal prac-
tice and to Community law itself, an approach which, at the
same time, appears to be inconsistent with the criteria laid
down for the implementation of Community competition
rules in cases involving succession/transfer. The contested
decision similarly fails totally to provide reasons in respect
of those issues.

ENI therefore seeks the annulment of or, at least, a considerable
reduction in the fine imposed, given that the Commission:

— has failed to assess the impact on the market concerned of

the offending conduct allegedly established;

— improperly established the aggravating circumstance of
repeated infringement,
to decisions
under Article 81 EC dating back many years which did not
in any way concern the applicant, even by virtue of its role
as head of a group.

referring, moreover,

— moreover, by erroneously excluding Syndial from the addres-
sees of the contested decision, contrary to the criteria laid
infringed Article 23 of Regulation
down by case-law,
No 1/2003, failing to take account of that company's turn-
over in that connection.

Appeal brought on 14 February 2007 by José António de
Brito Sequeira Carvalho against the judgment of the Civil
Service Tribunal delivered on 13 December 2006 in Case
F-17/05, de Brito Sequeira Carvalho v Commission

(Case T-40/07 P)

(2007/C 82/98)

Language of the case: French

Parties

Appellant:
Belgium) (represented by O. Martins, lawyer)

José António de Brito Sequeira Carvalho (Brussels,

Other party to the proceedings: Commission of
Communities

the European

Form of order sought by the appellant

— declare this appeal admissible and well founded;

— order the Commission to produce a file containing all the
documents concerning the applicant in his administrative
file held at the Investigation and Disciplinary Office of the
Commission, the medical service and in any other place
starting with the procedural documents pertaining to the
original proceedings on 2 February 2001 relating to alleged
evidence of defamatory acts attributed to the applicant;

— order the Commission to state the legal basis for the initia-
tion of a medical assessment of the appellant's mental health
by a Commission official immediately upon his appointment
in an administrative investigation into the alleged defama-
tion, and provide a list of documents from the original
proceedings;

— annul the judgement of the Civil Service Tribunal of the

European Union in Case F-17/05;

— declare the medical assessment which was substituted for
the administrative proceedings still pending since 2001 to
be illegal;

— declare that there has been a breach of the principle that a
time should be observed in the

reasonable period of
proceedings, which have not yet been closed;

— declare, on the grounds of

lack of
reasoning and non-existence, the act of a Commission offi-
cial of 18 June 2004 to be void and further declare that it is
not imputable to the appellant;

jurisdiction,

lack of

— declare both that the Appointing Authority's act of 28 June
2004 is legally non-existent, and that it cannot be raised
against the appellant, to whom it was never communicated;

— declare that a parallel file containing false information of a
personal nature adversely affecting the appellant is kept by
the Commission;