Case T-541/08: Action brought on 15 December 2008 — Sasol e.a./Commission
Date: 2008-12-15
Institutions: Court of First Instance
Subjects: European Commission, Germany, action for annulment (EU), disclosure of information, market-sharing agreement, marketing, paraffin

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.

C 44/58

EN

Official Journal of the European Union

21.2.2009

The applicants submit that the Commission further committed
manifest errors in determining the basic amount of the fine to
be imposed to Sasol by wrongfully inflating the turnover to be
taken into account and including turnover with products to
which the infringement did not directly or indirectly relate
within the meaning of Article 23(2)(1) of Regulation (EC)
No 1/2003 (3). The Commission also erred in law in choosing
the wrong methodology for determining the basic amount to be
applied in cases where the fine decision is directed at different
addresses for different periods of the infringement.

it

is submitted,

Furthermore,
the Commission erred in
assuming a leading role of Sasol with respect to paraffin waxes
and wrongfully increased the fine to be issued against Sasol by
an excessive and disproportionate amount of 50 %.

that

The applicants further contend that the Commission wrongfully
failed to apply the 10 % ceiling laid down in Article 23(2) of
Regulation (EC) No 1/2003 and violated the principle of indivi-
dual legal responsibility in not capping the fine to be issued for
this period at 10 % of the turnover attributable to Mr. Schü-
mann, who, according to the applicants ultimately controlled
the company which was directly involved in the infringement.

Finally, the applicants claim that the Commission erred in not
granting full immunity to Sasol with regards to certain parts of
the fine for which the Commission primarily relied on evidence
voluntarily provided by Sasol as part of its cooperation with the
Commission.

(1) Unless otherwise specified, refers to companies of the Sasol group

allegedly involved in the cartel.

(2) Partner of

the joint venture Schümann Sasol

International AG,
together with Sasol Ltd which indirectly acquired two thirds of Hans-
Otto Schümann GmbH & Co KG.

(3) 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 3 December 2008 — Evropaïki
Dynamiki v ECHA

(Case T-542/08)

(2009/C 44/100)

Language of the case: English

Defendant: European Chemicals Agency

Form of order sought

— annul European Chemicals Agency's decision to reject the
bid of the applicant, filed in response to the open Call for
Tender ECHA/2008/24 for the ‘Development of a Chemical
Safety Assessment tool’ (OJ 2008/S 115-152918), commu-
nicated to the applicant by an undated letter received by the
applicant on 25 September 2008 and all subsequent deci-
sions of ECHA including that to award it to the successful
contractor;

— order ECHA to pay the applicant's damages suffered on
the tendering procedure in question for an

account of
amount of EUR 1 500 000;

— order ECHA to pay the applicant's legal costs incurred in
connection with this application even if the current applica-
tion is rejected.

Pleas in law and main arguments

By means of its application, the applicant seeks the annulment
of the European Chemicals Agency's (‘ECHA’) decision which
was notified to it by way of a letter on 25 September 2008
informing the applicant that its bid submitted in the framework
the contract ECHA/2008/24 for the ‘Development of a
of
Chemical Safety Assessment tool’ (OJ 2008/S 115-152918) had
not been selected and that the contract had been attributed to
TRASYS SA.

fundamental

allegedly infringed by the

The applicant claims that the Evaluation Committee committed
multiple errors of assessment in relation to the award criteria,
rules and basic principles of public
whereas
contracting
procurement were
authority. Moreover, it is submitted that the ECHA misused its
powers in the tender evaluation, infringed the Financial Regu-
lation, and/or the principles of transparency and of equal treat-
ment and that it used vague terms or insufficient motivation to
substantiate its decision. Finally, the applicant contends that the
defendant breached an essential procedural
requirement,
deriving
from Article 158a of Commission Regulation
(EC, Euratom) No 478/2007 (1), providing for a standstill period
before signing the contract with the successful tenderer. The
the defendant has deliberately delayed
applicant claims that
communicating with the applicant in order to be able to finalise
the signature of the contract with the wining tenderer before it
received any comments from the applicant, thus annulling the
spirit and purpose of the standstill period.

Parties

Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepi-
koinonion Pliroforikis kai Tilematikis AE (Athens, Greece)
(represented by: N. Korogiannakis, P. Katsimani, and M. Dermit-
zakis, lawyers)

the applicant

In addition,
requests monetary compensation
equal to EUR 1 500 000, corresponding to the estimated gross
profit from the aforementioned public procurement procedure,
should it have been awarded the contract. The applicant submits
that its claim for damages is based upon its substantiated argu-
ments that there has been a sufficiently serious breach of a