Case T-540/08: Action brought on 12 December 2008 — Esso e.a./Commission
Date: 2008-12-12
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, equal treatment, merger, paraffin

C 44/56

EN

Official Journal of the European Union

21.2.2009

— disodium tetraborate anhydrous; boric acid, disodium
salt; tetraboron disodium heptaoxide, hydrate; orthobroic
acid, sodium salt,

failed to provide adequate reasons pursuant to Article 253 EC as
no justification was given by the Commission to explain the
grounds for the extrapolation of data.

— disodium tetraborate decahydrate; borax decrahydrate,

— disodium tetraborate penthahydrate; borax pentahydrate.

— in alternative, partially annul

the contested measures by
annulling the entries in Annex 1G to the contested measure
relating to the following substances:

— diboron trioxide; boric oxide,

— disodium tetraborate anhydrous; boric acid, disodium
salt; tetraboron disodium heptaoxide, hydrate; orthobroic
acid, sodium salt,

— disodium tetraborate decahydrate; borax decrahydrate,

— disodium tetraborate penthahydrate; borax pentahydrate.

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

the applicant claims that

Third,
the Commission infringed
fundamental principles of the community law such as principle
of proportionality as stated in Article 5 EC as, in the applicant's
opinion, the contested measure goes beyond what is necessary
to achieve the aims pursued by that measure.

(1) OJ L 246, p. 1.
(2) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to the
classification, packaging and labelling of dangerous
substances,
OJ 196, p. 1.

(3) Council Decision of 28 June 1999 laying down the procedures for
the exercise of implementing powers conferred on the Commission,
OJ L 184, p. 23.

Pleas in law and main arguments

Action brought on 12 December

2008 — Esso

By means of this application, the applicant seeks partial annul-
ment pursuant
to Article 230 EC of Commission Directive
2008/58/EC of 21 August 2008 amending, for the purpose of
its adaptation to technical progress, for the 30th time, Council
Directive 67/548/EEC on the approximation of the laws, regula-
tions and administrative provisions relating to the classification,
packaging and labelling of dangerous substances (1) in so far as
it classifies certain borates as toxic to reproduction for both
fertility and development effects.

The applicant puts forward three pleas in law in support of its
claims.

First, the applicant claims that the Commission has infringed
essential procedural requirements as the contested measure fails
to comply with the applicable legislative procedure and there-
fore infringes Articles 5 and 7 EC, Article 29 of Council Direc-
tive 67/548/EEC (2)
and Article 5 of Council Decision
1999/468/EC (3).

Second, the applicant argues that the Commission committed
errors of assessment in applying the criteria for classification of
the borate substances and thus infringed Council Directive
67/548/EEC. It submits that the Commission did not apply or
failed to properly apply the ‘normal handling and use’ principle
provided for in Annex VI to Directive 67/548/EEC, unlawfully
applied risk assessment criteria while, in the applicant's opinion,
they are irrelevant in the context of classification of substances
under Directive 67/548/EEC and failed to apply or misapplied
the ‘appropriateness’ criterion in breach of point 4.2.3.3 of
Annex VI to Directive 67/548/EEC. Furthermore, the applicant
contends that the Commission failed to give sufficient weight to
epidemiological and human data submitted by the applicant
and, in result, the contested measure is partially vitiated by a
manifest error of assessment. The applicant claims that
the
Commission unlawfully extrapolated data relating to one of the
borate substances for the purposes of classifying the other
borate substances and therefore the contested measure must be
partially annulled at least in so far as it concerns the other
borate substances. The applicant submits that the Commission

e.a./Commission

(Case T-540/08)

(2009/C 44/98)

Language of the case: English

Parties

Applicants: Esso Société Anonyme
(Courbevoie,
France), Esso Deutschland GmbH (Hamburg, Germany), Exxon-
Mobil Petroleum and Chemical BVBA (Antwerpen, Belgium),
Exxon Mobil Corp. (Irving, United States) (represented by: R.
Snelders, R. Subiotto, L.-P. Rudolf, M. Piergiovanni, lawyers)

Française

Defendant: Commission of the European Communities

Form of order sought

— partially annul

the Commission's decision of 1 October
2008, relating to a proceeding under Article 81 EC (Case
COMP/39.181 — Candle waxes);

— reduce the fine imposed on the applicants by that decision,

and

— order the Commission to pay the costs of

the present

proceedings.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission's deci-
sion C(2008) 5476 final of 1 October 2008,
in Case
COMP/39.181 — Candle waxes (‘the contested decision’) and a
reduction of the fines imposed on the applicants.

21.2.2009

EN

Official Journal of the European Union

C 44/57

In support of
following two main pleas in law:

their claims,

the applicants put

forward the

Defendant: Commission of the European Communities

By their first plea, the applicants submit that the decision errs in
law by basing the calculation of Esso Société Anonyme Françai-
se's (‘Esso’) fine on a methodology that fails to reflect the undis-
puted fact that, before the merger between Exxon and Mobil,
Exxon's paraffin wax business did not participate in the infringe-
ment. The applicants claim that under the contested decision,
Esso is fined as if Exxon had participated in the infringement for
seven years prior to the merger, even though the contested deci-
sion acknowledges it did not do so. As a result, the contested
decision overstates the relative weight of Esso in the infringe-
ment and violates the principles of equality and proportionality,
as well as Article 23(3) of Regulation (EC) No 1/2003 (1) and
the 2006 Fining Guidelines (2).

By their second plea, the applicants submit that the contested
decision errs in law by finding that the applicants' participation
in the paraffin wax part of the infringement ended only in
November 2003. In particular, the applicants contend that the
contested decision fails to meet the Commission's burden of
proof in establishing the duration of the applicant's participa-
tion in the paraffin wax part of the infringement. Moreover, the
applicants claim that the contested decision fails to draw the
proper conclusions from the undisputed fact that the applicants
did not participate in — and were not informed of the outcome
of — any ‘Technical Meetings’ held after 27/28 February 2003.

(1) 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).

(2) Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210 p. 2)

Action brought on 15 December 2008 — Sasol
e.a./Commission

(Case T-541/08)

(2009/C 44/99)

Language of the case: English

Parties

Applicants: Sasol Ltd (Johannesburg, South Africa), Sasol Holding
in Germany GmbH (Hamburg, Germany), Sasol Wax Interna-
tional AG (Hamburg, Germany), Sasol Wax GmbH (Hamburg,
Germany) (represented by: W. Bosch, U. Denzel, C. von Köck-
ritz, lawyers)

Form of order sought

— to annul or substantially reduce the fine imposed on Sasol
Limited, Sasol Holding in Germany GmbH, Sasol Wax Inter-
national AG and Sasol Wax GmbH pursuant to Article 2 of
the decision; and

— to order the Commission to pay the applicants' legal and

other costs and expenses in relation to this matter.

Pleas in law and main arguments

the partial annulment, pursuant

to
This application seeks
Article 230 EC, of the Commission's decision C(2008) 5476
final, of 1 October 2008, relating to a proceeding under
Article 81 EC and Article 53 EEA in Case COMP/39.181 —
Candle Waxes on behalf of the applicants.

In its decision, the Commission found that a number of produ-
cers of paraffin waxes and slack wax had operated a cartel from
1992 to 2005 in which they held regular meetings to discuss
prices, to allocate markets and/or customers and to exchange
sensitive commercial information with regard to paraffin waxes
and slack wax sold to end customers in Germany.

The applicants base their application on the following pleas in
law and main arguments:

According to the applicants, the Commission was wrong to
hold Sasol Limited (the parent company of the Sasol group),
Sasol Holding in Germany and Sasol Wax International AG
liable for ‘the joint venture period’ (1 May 1995 until 30 June
2002). The applicants submit that the Commission's assumption
that Sasol Limited (via its subsidiary Sasol Holding in Germany)
exercised a decisive influence over Schümann Sasol International
AG amounts to a manifest error of assessment of the evidence
available to the Commission.

The applicants further submit that the Commission also erred in
holding Sasol Limited, Sasol Holding in Germany and Sasol
Wax International AG liable for ‘the Sasol period’ from 1 July
2002 to 28 April 2005. Further, they claim that the Commis-
sion applied the wrong legal standard and ignored the evidence
brought forward by Sasol (1) demonstrating that Sasol Wax had
acted autonomously on the market,
thereby rebutting any
presumption of parental liability.

Moreover,
it is submitted that the Commission erred in not
holding VARA jointly and severally liable for ‘the Schümann
period’ (from 3 September 1992 until 30 April 1995). Instead
of holding VARA (2)
liable, which exercised control over the
entity participating in the infringements, the Commission attrib-
uted comprehensive liability exclusively to Sasol and compro-
mised thus, possible means of recourse for Sasol against VARA.