Case T-103/08: Action brought on 20 February 2008 — Polimeri Europa and Eni v Commission
Date: 2008-02-20
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), confidentiality, exchange of information, price agreement, rubber industry, unlawful agreement

12.4.2008

EN

Official Journal of the European Union

C 92/45

— As regards the tobacco premium system,

infringement of
Article 9(3) of Council Regulation (EEC) No 2075/92 of
30 June 1992 on the common organization of the market
in raw tobacco (OJ 1992 L 215, p. 70) and Articles 11
and 12 of Commission Regulation (EC) No 2848/98 of
22 December 1998 laying down detailed rules for the appli-
cation of Council Regulation (EEC) No 075/92 (OJ 1998
L 358, p. 17).

Action brought on 20 February 2008 — Polimeri Europa
and Eni v Commission

(Case T-103/08)

(2008/C 92/88)

Language of the case: Italian

Parties

Applicants: Polimeri Europa SpA (Brindisi, Italy), Eni SpA (Rome,
Italy)
(represented by: M. Siragusa, G.M. Roberti, F. Moretti,
I. Perego, F. Cannizzaro, V. Ruotolo, V. Larocca and D. Durante,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the Decision, in whole or in part, in particular so far
as it concerns the applicants, with all the consequential
implications for the level of the fine;

— in the alternative, annul or reduce the fine;

— order

the Commission to pay the costs and associated

expenses.

Pleas in law and main arguments

By Decision C(2007) 5910 final of 5 December 2007 in Case
CONP/F/38629 — Chloroprene rubber (‘CRr’) — (‘the Decision’),
jointly and
the Commission found Polimeri Europa and Eni
severally liable, together with other undertakings, for breach of
Article 81 EC, by having (i) agreed to share and fix markets,
market shares and sales, (ii) fixed and increased prices for Chlor-
oprene rubber, as well as set minimum prices, (iii) shared custo-
mers and (iv) exchanged restricted commercial information.

In support of their action challenging that decision, Polimeri
Europa and Eni allege that
the Decision is vitiated by the
following substantive defects:

imputation to Eni of

— Breach of Article 81 EC and failure to state reasons for the
wrongful
liability for the acts of a
subsidiary company. It is submitted in this regard that the
liability of the parent company cannot be established solely
on the basis of its ownership of 100 % of the share capital
and that the defendant failed correctly to assess the evidence
which demonstrated the de facto independence of the subsi-
diaries vis-à-vis their parent company.

— Inconsistency with the letter closing the procedure against
the undertaking responsible, until 1 January 2002, for the
CR business, Syndial S.p.A. (‘Syndial’), and infringement of
the rights of the defence.

— Breach of Article 81 EC and lack of an adequate statement
of reasons by virtue of the erroneous attribution to Polimeri
Europa of liability for facts relating to a period during which
another company (and not Polimeri Europa) was managing
the CR business.

— Insufficiency and inconsistency in the statement of reasons,
lack of a proper preliminary investigation and breach of
Article 81 EC in regard to the appraisal of the facts and
evidence.

— Insufficiency and inconsistency in the statement of reasons
in the Decision, lack of a proper preliminary investigation
and breach of Article 81 EC as regards the evaluation of the
breach as a single and continuous infringement.

— Erroneous calculation of the duration of the infringement in

the light of the evidence available.

The applicants then allege that the fine imposed on them is
unlawful as being contrary to Article 81 EC and Article 23 of
Regulation (EC) No 1/2003, as well as being at variance with
the Guidelines for the calculation of fines.

It is argued in that regard that there was both an infringement
of the principle of proportionality by the increases imposed for
repeat offending and purposes of deterrence and an insufficient
statement of reasons for refusing to give credit for the miti-
gating circumstances, in relation to the passive or minor role
played in the infringement, to the limited participation in the
unlawful conduct, to the cessation of such participation and to
the failure to implement the agreements. Polimeri Europa and
Eni also complain of the failure to take account of the coopera-
tion provided by Syndial and Polimeri Europa for the purpose
of reducing the fine in accordance with the abovementioned
Guidelines.

The applicants plead, finally, a breach of Article 81 EC and of
the Commission Notice on immunity from fines and reduction of fines
in cartel cases by the Commission's erroneous assessment of the
value of the evidence provided by Syndial and Polimeri Europa
and its refusal to grant a reduction in the fine in accordance
with that Notice.

Order of the Court of First Instance of 1 February 2008 —
Nomura Principal Investment and Nomura v Commission

(Case T-430/04) (1)

(2008/C 92/89)

Language of the case: English

The President of the Court of First Instance (Fifth Chamber) has
ordered that the case be removed from the register.

(1) OJ C 31, 5.2.2005.