Case T-43/07 P: Appeal brought on 14 February 2007 by Neophytos Neophytou against the judgment of the Civil Service Tribunal delivered on 13 December 2006 in Case F-22/05, Neophytou/Commission
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), administrator, appeal, competition (EU), equal treatment

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.

14.4.2007

EN

Official Journal of the European Union

C 82/49

this complaint

the appellant argues

is directly
that
Also,
connected to his second plea alleging infringement of the prin-
ciple of non-discrimination on the grounds of unlawful compo-
sition of the selection board. On that basis, the appellant claims
the Civil Service Tribunal did not properly implement
the
abovementioned principle, or at least failed to provide adequate
reasoning for the particular features of the competition at stake;
while it misunderstood his pleas and failed to address a number
of them.

Action brought on 16 February 2007 — Kaučuk v
Commission

(Case T-44/07)

(2007/C 82/102)

In support of its application, the applicant submits that the
Commission:

— erred in law by imputing the conduct of its sales inter-
mediary Tavorex, an independent legal entity, to the appli-
cant;

— erred by failing to prove to the requisite legal standard that
Tavorex was involved in a single and continuous infringe-
ment from November 1999 until November 2002;

— committed a manifest error of appreciation by finding the
to prove Tavorex's involvement but

same facts sufficient
insufficient to prove the involvement of another producer;

— erred in law by applying EC competition law to the appli-
cant and Tavorex without establishing a sufficient connec-
tion between the applicant/Tavorex, the activity concerned
and the territory of the European Communities contrary to
the case law on extraterritorial application of EC competi-
tion law;

— committed a manifest error of

law and appreciation in
finding that the applicant, through Tavorex, committed an
infringement regarding butadiene rubber, a product
the
applicant neither produces nor sells;

Language of the case: English

— failed to establish,

whether
infringement intentionally or negligently; and

the applicant,

for the purposes of setting the fine,
through Tavorex, committed the

Parties

— committed a manifest error of

law and appreciation by

failing to apply its Fining Guidelines.

Applicant: Kaučuk a.s.
(represented by: M. Powell and K. Kuik, solicitors)

(Kralupy nad Vltavou, Czech Republic)

Defendant: Commission of the European Communities

Action brought on 16 February 2007 — Unipetrol v
Commission

Form of order sought

— Annul Articles 1 to 3 of the contested decision in whole or

in part insofar as they are addressed to the applicant;

— alternatively, annul Article 2 of

the contested decision
insofar as it imposes a fine of EUR 17.55 million on Kaučuk
and fix a substantially lower fine; and

— order the European Commission to pay the costs of the

Parties

(Case T-45/07)

(2007/C 82/103)

Language of the case: English

proceedings.

Applicant: Unipetrol a.s. (Prague, Czech Republic) (represented
by: J. Matějček and I. Janda, lawyers)

Pleas in law and main arguments

Defendant: Commission of the European Communities

The applicant seeks the partial annulment of Commission Deci-
sion 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 applicant,
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 exchanging
information relating to prices, competitors and
commercial
customers.

Form of order sought

— Annul the contested decision in whole or in part, at least as

far as Unipetrol is concerned;

— otherwise exercise the Court's unlimited jurisdiction; and

— order the Commission to bear the costs of these proceed-

ings.