Case T-299/08: Action brought on 1 August 2008 — Elf Aquitaine v Commission
Date: 2008-08-01
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, fine, price agreement, restriction on competition

25.10.2008

EN

Official Journal of the European Union

C 272/29

Form of order sought

— To declare the present application admissible and well

founded;

— To declare that, by failing to take the necessary measures
provided for in Article 18 of Directive 2001/18/EC of
12 March 2001 and in Article 5 of Council Decision
1999/468/EC of 28 June 1999 and adopt the Amflora Deci-
sion,
its obligations
under these articles; alternatively

the Commission has failed to fulfil

— To order

the annulment of

the Commission decision
granting a mandate to EFSA ‘for a consolidated opinion on
use of antibiotic resistant marker genes (ARM) used as
marker genes in genetically modified plants’, dated 14 May
2008 and the suspension of the procedure leading to the
adoption of the Amflora Decision, notified to the applicants
by letter dated 19 May 2008;

— To grant the requested measures of instruction;

— To order

the defendant

to pay all costs and expenses

incurred in these proceedings.

Pleas in law and main arguments

The applicants claim that the Commission, by failing to adopt a
decision on the request for authorisation to place a genetically
modified potato (‘Amflora potato’) on the market for industrial
uses under Directive 2001/18/EC (1), has disregarded its obliga-
tions under Article 18(1) of the said directive and Article 5(6)
of Council Decision 1999/468/EC (‘the Comitology decision’) (2)
and has
thereby failed to act within the meaning on
Article 232 EC.

that

The applicants submit
the Commission's obligation to
adopt such a decision within the timeframe laid down in Direc-
tive 2001/18/EC is further confirmed by a number of factors,
namely (a) the need to preserve institutional balance, (b) further
consideration of the legal basis for the Commission's request
and (c) general principles of EC law.

However, the applicants contend that,
in the event that the
Court found that the Commission's letter of 19 May 2008
constitutes a definition of the Commission's position, and that
the applicants' action for failure to act is therefore inadmissible,
the applicants request in the alternative the Court to annul the
Commission decision of 14 May 2008 granting a mandate to
EFSA for a consolidated opinion, and the suspension of the
procedure pending a fifth scientific assessment, leading to the
adoption of the contested decision.

The applicants claim that in adopting the contested decision,
and thus, further delaying the adoption of the Amflora Deci-
sion,
the Commission infringed Article 18(1) of Directive
2001/18 and Article 5(6) subparagraph 3 of the Comitology
decision, which required the Amflora Decision to be adopted

within 120 days following the commencement of the Com-
munity procedure, as well as fundamental EC law principles of
proportionality, sound administration,
legitimate expectations,
legal certainty and non-discrimination.

(1) Directive 2001/18/EC of

the
Council of 12 March 2001 on the deliberate release into the environ-
ment of genetically modified organisms and repealing Council Direc-
tive 90/220/EEC (OJ 2001 L 106, p. 1).

the European Parliament and of

(2) Council Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers conferred on
the Commission (OJ 1999 C 184, p. 23).

Action brought on 1 August 2008 — Elf Aquitaine v
Commission

(Case T-299/08)

(2008/C 272/56)

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by:
E.Morgan de Rivery, S.Thibault-Liger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul, pursuant

Commission

the Decision of
to Article 230 EC,
the
Communities
the
No C(2008) 2626 final of 11 June 2008 in so far as it
concerns Elf Aquitaine;

European

of

— in the alternative:

— annul or reduce, pursuant to Article 229 EC, the fine of
EUR 22 700 000 imposed jointly and severally on
Arkema France SA and Elf Aquitaine by Article 2(c) of
the Decision of
the European
Communities No C(2008) 2626 final of 11 June 2008;

the Commission of

— annul or reduce, pursuant to Article 229 EC, the fine of
EUR 15 890 000 imposed on Elf Aquitaine by
Article 2(e) of the Decision of the European Commu-
nities No C(2008) 2626 final of 11 June 2008;

— in any event, order

the Commission of

the European

Communities to pay all the costs.

C 272/30

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment
of Commission Decision C(2008) 2626 final of 11 June 2008
in which the
in Case COMP/38.695 — Sodium chlorate,
Commission declared that certain undertakings,
including the
applicant, had infringed Article 81(1) EC and Article 53(1) of
the European Economic Area Agreement by allocating sales
volumes, fixing prices, exchanging sensitive commercial
infor-
mation about prices and sales volumes and by monitoring the
implementation of
those anti-competitive agreements in the
market for sodium chlorate in the European Economic Area.

In support of its claims, the applicant relies on eleven pleas in
law based on:

autonomy of a legal person and the taking of the deterrent
effect into account twice whilst fixing the level of the fine;

— infringement of

the principles and rules concerning the

calculation of fines;

— infringement of the leniency notice (1) by alleging that the
evidence adduced by the subsidiary Arkema France was
insufficient; and

— the fact that it is inequitable to impose the heaviest penalty
on the applicant by means of two separate fines when the
responsibility of the subsidiary Arkema France was signifi-
cantly less than that of EKA and Finnish Chemicals.

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

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

(i)

in so far as

— infringement of the rules governing the responsibility for
offences within corporate groups
the
Commission incorrectly stated that it was not obliged to
adduce evidence supporting the presumption that a holding
company which owns 100 % of a subsidiary has a decisive
(ii) the evidence actually relied
influence over the latter;
upon by the Commission did not
this
presumption and (iii) the Commission rejected the body of
evidence presented by the applicant with a view to over-
turning that presumption;

such support

— infringement of the applicant's right to a fair hearing and
the principles of equality of arms, the presumption of inno-
cence,
individual responsibility and appropriateness of the
punishment, of legality and equal treatment as regards the
imputation of liability;

— distortion of the body of evidence adduced by the applicant;

Parties

Action brought on 5 August 2008 — Smurfit Kappa Group
v Commission

(Case T-304/08)

(2008/C 272/57)

Language of the case: English

— conflicting reasons with regard to the concept of an under-
taking for the purposes of Article 81(1) EC, with regard to
the independence of the subsidiary Arkema France vis-à-vis
the applicant and to the degree and nature of control that
must be exercised by a holding company over its subsidiary
for it to be held responsible for the breaches of the latter;

— infringement of the principle of sound administration in so
far as the Commission (i) did not carefully and impartially
examine all the relevant evidence, (ii) did not apply the same
rules to itself as it applied to the parties and (iii) did not
suspend the proceedings
the applicant
pending the passing of judgment in relevant cases pending
before the Court of First Instance;

initiated against

— infringement of the principle of

legal certainty, since the
Commission did not follow criteria applied in previous deci-
sions with respect
to the responsibility of a holding
company for the breaches a subsidiary;

— an abuse of power, since the penalties imposed deviated
that being to punish an

from their legitimate purpose,
undertaking for having committed an infringement;

— the unfounded nature of the imposition of a fine specific to
the

in infringement of

the principle of

the applicant

Applicant: Smurfit Kappa Group plc (Dublin,
sented by: T. R. Ottervanger, E. V. A. Henny, lawyers)

Ireland)

(repre-

Defendant: Commission of the European Communities

Form of order sought

— To annul the decision of the Commission in accordance

with Article 230 EC;

— To order the Commission to pay the costs incurred by the

applicants in the proceedings.

Pleas in law and main arguments

The applicant seeks pursuant to Article 230 EC annulment of
Commission decision N 582/2007 of 2 April 2008 (Case ‘Aid
in
to Propapier PM2 GmbH & Co. KG-LIP’ C(2008) 1107)
which the Commission approved the State aid notified by the
German State to Propapier PM2 GmbH & Co. KG.

The applicant, an Irish based international packaging company,
lodged an informal complaint to the Commission against the
grant of a substantial subsidy for the construction (in the
Region of Brandenburg-Nordost in Germany) of what would be,