Case T-95/08: Action brought on 22 February 2008 — Italy v Commission
Date: 2008-02-22
Institutions: Court of First Instance
Subjects: EAGGF Guarantee Section, EU financing, European Commission, Italy, action for annulment (EU), aid system, validation of expenditure

C 92/44

EN

Official Journal of the European Union

12.4.2008

coordination centres whose applications to benefit from the
scheme in question were pending at the time of notification of
that decision or whose approval expired at that time or shortly
after notification of the decision. The applicant in the present
case was one of the coordination centres referred to in the
operative part of the judgment.

On 13 November 2007, the Commission adopted a new deci-
sion, Decision C(2007) 5416 final, by which it amended Deci-
sion 2003/757/EC by declaring the Belgian law adopted
following the judgment in Belgium and Forum 187 v Commission
incompatible with the internal market and seeking to permit
extension until
the transitional period
during which the centres referred to in that judgment could
benefit from the scheme. Decision C(2007) 5416 final also
provided that the transitional period expires on 31 December
the
2005. This is the contested decision in the context of
present action.

the end of 2010 of

In support of its action, the applicant raises three pleas in law.

As a principal plea,
the contested decision
it submits that
infringes the principle of equal treatment and the obligation on
the Commission to implement the measures contained in the
judgment in Belgium and Forum 187 v Commission,
in that it
would not put an end to the unequal treatment referred to in
that judgment since the transitional period granted to the appli-
cant is much shorter than that granted to centres in a similar
situation according to the indication given by the Court.
It
submits that it should have benefited from a transitional period
expiring on 31 December 2010.

As an alternative plea, the applicant raises a plea alleging breach
of the principles of legal certainty and of legitimate expectations
in that the contested decision establishes a transitional period
limited to 31 December 2005, which produces retroactive
effects and results in the applicant being unable in good time to
take the steps necessary to adapt to the change in the scheme
before that date. On that basis, and in the alternative, the appli-
cant claims that it should benefit from a transitional period
expiring on 31 December 2009 at the earliest.

As a further alternative plea, the applicant raises a plea alleging
breach of the principle of equal treatment in that the contested
decision treats it differently from four coordination centres
which were, at the time of the first decision, 2003/757/EC, in
an identical situation but which obtained a renewal of their
approval for an indefinite period. On the basis of that plea, and
in the alternative, the applicant submits that it should have
benefited from a transitional period expiring on 31 December
2006 at the earliest.

(1) Joined Cases C-182/03 and C-217/03 Belgium and Forum 187 v

Commission [2006] ECR I-5479.

(2) OJ L 282, p. 25, corrected version OJ 2003 L 285, p. 52.
(3) See footnote 1.

Action brought on 22 February 2008 — Italy v
Commission

(Case T-95/08)

(2008/C 92/87)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: G. Aiello, avvocato
dello Stato)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision C(2007) 6514 of 20 December
2007, notified on 21 December 2007,
in so far as it
excludes from Community financing and charges to the
budget of the Italian Republic the financial consequences to
be applied in connection with clearance of the expenditure
financed by the Guarantee Section of the European Agri-
cultural Guidance and Guarantee Fund.

— Order the defendant to pay the costs.

Pleas in law and main arguments

The Italian Government brings
the present action against
Commission Decision C(2007) 6514 of 20 December 2007 in
so far as it excludes from Community financing and charges to
the budget of the applicant the financial consequences to be
applied in connection with clearance of
the expenditure
financed by the Guarantee Section of the European Agricultural
Guidance and Guarantee Fund.

In support of its claims, the applicant submits:

— As regards aid for products processed from fruit and vegeta-
bles,
infringement of Article 30(1) of Commission Regu-
lation (EC) No 1535/2003 of 29 August 2003 laying down
applying Council Regulation (EC)
detailed rules
No 2201/96 as
the aid scheme for products
processed from fruit and vegetables (OJ 2003 L 218, p. 14).

regards

for

— As regards the purchase of bovine animals aged over
30 months
infringement of
intended for destruction,
Article 5(5) of Commission Regulation (EC) No 2777/2000
of 18 December 2000 adopting exceptional
support
measures for the beef market (OJ 2000 L 321, p. 47) and of
Article 4 of Commission Decision 97/735/EC of 21 October
1997 concerning certain protection measures with regard to
trade
in certain types of mammalian animal waste
(OJ 1997 L 294, p. 7).

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.