Case T-558/08: Action brought on 17 December 2008 — ENI v Commission
Date: 2008-12-17
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, exchange of information, fixing of prices, principle of legal certainty

21.2.2009

EN

Official Journal of the European Union

C 44/61

Action brought on 17 December 2008 — ENI v
Commission

lines on the method of setting fines. It is submitted in that
regard that the Commission:

(Case T-558/08)

(2009/C 44/104)

Language of the case: Italian

Parties

Applicant: ENI SpA (Rome, Italy) (represented by: M. Siragusa,
lawyer, D. Durante,
lawyer, S. Valentino,
lawyer, G.C. Rizza,
lawyer, L. Bellia, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

— annul the Decision in whole or in part, with all the conse-

quential implications for the level of the fine;

— in the alternative, annul or reduce the fine;

— in any event, order the Commission to pay the costs and

associated expenses.

Pleas in law and main arguments

The decision contested in the present case is the same as that
contested in Case T-540/08 Esso and Others v Commission.

The applicant pleads the following in support of its action:

— determined the basic amount and the additional amount
of the fine in a way that was unreasonable and contrary
to the principle of equal treatment and the principle of
proportionality. In fact, the percentage applied by the
Commission in order to determine the basic amount
(and the additional amount) of the fine was 17 % of the
value of the sales, on the ground that ENI was respon-
sible for the fixing of prices and the exchange of infor-
mation, whilst the coefficient applied by the Commission
to other undertakings which participated in the cartel
and which also shared products and/or customers was
practically identical (18 %).

— disregarded the principle of legal certainty as regards its
application of a repeat offender surcharge, even though
the offences committed in the 1980s by companies
controlled by ENI could not be attributed to ENI and
were not blamed on ENI at the time of the respective
decisions. Furthermore, application of a repeat offender
surcharge is unjustifiable in view of the length of time
which has passed between the old offences and those
covered by the Decision.

— failed to categorise as mitigating circumstances the appli-
cant's limited participation in the agreement and the lack
of implementation of the decisions made in the course
of the ‘technical meetings’. ENI adds that it provided
evidence of Mr Monti's belief that the meetings that he
was attending were entirely legitimate in that they were
organised by the European Wax Federation and, in any
case, of the lack of any intention by ENI to commit an
infringement;
from its
information
employee did not enable it to appreciate the anti-compe-
titive implications of those meetings.

received

the

(i)

in that

the presence of Mr Di Serio at

— Infringement and misapplication of Article 81 EC in so far
as Article 1 of the Decision found that ENI had participated
in a continuing agreement and/or concerted practice by
the ‘technical
virtue of
meeting’ held on 30/31 October in Hamburg. In particular,
ENI complains of errors of fact, and contests the legal conse-
quences flowing therefrom,
the Commission
stated that ENI had not, as part of its defence during the
administrative procedure, maintained that Mr Di Serio
‘openly distanced himself’ from the content of the meeting
in question and (ii) the Commission reported incorrectly
ENI's statements concerning the discrepancies between the
price increases reported in the documents originating from
Sasol and from MOL. Apart from such errors, ENI submits
that the Commission erred in law in finding that ENI had
participated in a continuing agreement and/or concerted
practice, when ENI had not participated in any ‘global plan’
and the requisite evidence of the two infringements alleged
was lacking;

— Infringement and misapplication of Article 81 EC in so far
as Article 1 of the Decision found that ENI had participated
in an agreement and/or a concerted practice in the period
from 21 February 2002 to 28 April 2005. ENI disputes, in
particular, the assessment of its participation as anti-compe-
titive in view of the absence of the requisite evidence of an
agreement or concerted practice for the fixing of prices and
the exchange of sensitive information.

— Infringement and misapplication of Article 81 EC and
Article 23 of Regulation (EC) No 1/2003, and of the Guide-

Action brought on 17 December 2008 — STIM d'Orbigny
v Commission

(Case T-559/08)

(2009/C 44/105)

Language of the case: French

Parties

Applicant: Société de travaux industriels et maritimes d'Orbigny
(STIM d'Orbigny SA) (Paris, France) (represented by: F. Froment-
Meurice, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul the contested Commission decision