Case T-496/07: Action brought on 18 December 2007 — Repsol YPF Lubricantes y especialidades and Others v Commission
Date: 2007-12-18
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), control of restrictive practices, oil industry, unlawful agreement

8.3.2008

EN

Official Journal of the European Union

C 64/49

the

that

applicant

complains

the Commission
Secondly,
infringed the applicable law. The applicant claims that
the
contested decision infringes the principle of equal treatment by
incorrectly applying the Notice on cooperation of 2002 (1),
infringes the principle of sound administration by not having
completed the procedure within a reasonable time and sets a
fine which is above the lawful limit established in Regulation
(EC) No 1/2003 (2), thereby infringing the principle of propor-
tionality.

In addition,
the applicant considers
infringed the obligation to state reasons.

that

the Commission

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

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

(2) 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).

Action brought on 18 December 2007 — Repsol YPF
Lubricantes y especialidades and Others v Commission

(Case T-496/07)

(2008/C 64/80)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades SA (Madrid,
Spain) Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA
(Madrid, Spain)
J. Buendía
Sierra and M. Muñoz de Juan, lawyers)

(represented by: L. Ortiz Blanco,

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision [C(2007) 4441] to the extent that it

— Attributes joint and several liability for the infringement

to Repsol Petróleo, SA;

— Attributes joint and several liability and affiliate liability

to Repsol YPF, SA;

— Determines the basic amount in a manner contrary to
taking into

the principle of proportionality by not

account either
the restricted geographic extent and
economic value of the market affected or the effects on
the market (which failing, the slight impact);

— applies incorrectly the Notice on leniency, in particular
the fine

in relation to the percentage reduction of
granted to Repsol: and

— treats leadership as an aggravating factor

— Reduce the fine imposed on Repsol in the exercise of the
Court's unlimited jurisdiction to an appropriate amount;

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

Pleas in law and main arguments

The action is directed against Commission Decision C(2007)
4441 final of 3 October 2007in the Case COMP/38710 —
Bitumen Spain.
the Commission
In the contested decision,
declared that the applicant, together with other companies, had
infringed Article 81 EC by having taken part, over a certain
period, in a set of agreements and concerted practices in the
market for penetration bitumen, namely agreements for sharing
the market and coordinating prices. In respect of those infringe-
ments the Commission imposed a fine for which the applicants
are jointly and severally liable.

In support of their claims, the applicants allege first an error of
assessment of the facts and an error of law in the incorrectly
attribution of responsibility for the infringement to the parent
companies of Repsol YPF Lubricantes y especialidades SA. In
that context,
the applicants consider that the attribution of
affiliate liability contravenes Community law.

Secondly, the applicants allege that the Commission infringed
the principle of proportionality in calculating the initial amount.

Thirdly, the applicants allege a manifest error of assessment or
alternatively an infringement of the general principles of protec-
tion of legitimate expectations, proportionality and equal treat-
ment in determining the percentage reduction of the fine in
accordance with the Notice on cooperation of 2002 (1).

Lastly, the applicants consider that the Commission committed
a manifest error of assessment in relation to the evaluation
leadership of the cartel
jointly with another company as an
aggravating factor.

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

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