Case T-559/08: Action brought on 17 December 2008 — STIM d'Orbigny v Commission
Date: 2008-12-17
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, equal treatment, exchange of information

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

C 44/62

EN

Official Journal of the European Union

21.2.2009

— Annul Article 1 of

the

contested decision declaring:
(1) compensation paid by the French State to SNCM of
EUR 53,48 million an unlawful but compatible State aid;
(2) the negative sale price of SNCM of EUR 158 million as
not constituting State aid; and (3) restructuring aid of
EUR 15,81 million an unlawful but compatible State aid;

— Order the Commission to pay STIM d'Orbigny the costs and

expenses arising from the contested decision.

Pleas in law and main arguments

The applicant seeks the annulment of Commission decision
C(2008) 3182 final of 8 July 2008, in which the Commission
stated that:

— compensation paid by the French Republic to the Société
Nationale Maritime
of
EUR 53,48 million in respect of public service obligations
constituted State aid which was unlawful, but compatible
with the common market;

Corse-Méditerranée

(‘SNCM’)

— the negative sale price of EUR 158 million for SNCM, the
undertaking by the Compagnie Générale Maritime et Finan-
cière (‘CGMF’) of social measures towards employees for an
amount of EUR 38.5 million and the related and concomi-
tant recapitalisation of SNCM by CGMF for EUR 8,75 million
did not constitute State aid; and

— restructuring aid of EUR 15,81 million which the French
Republic put into operation in favour of SNCM constituted
State aid which was unlawful, but compatible with the
common market.

In support of
claiming:

its action,

the applicant makes three pleas,

— insufficient statement of reasons, in that the Commission:

— did not define the market under consideration or explain

the position of rival undertakings;

— did not reply to certain arguments of the Compagnie
Méridionale de Navigation operating on the market in
question; and

— did not find incompatibility with the common market of
the capital contribution exceeding EUR 15,81 million
declared compatible with the common market;

against the State in the event of
liquidation justified
regarding the sale of SNCM at a negative price as the
least costly solution;

— the capital contribution by CGMF of EUR 8,75 million,
the Commission not having taken into consideration all
the economic, financial and legal factors, and not having
proved that the contribution by CGMF did not constitute
State aid;

— the

current

account

contribution

of
EUR 38,5 million by way of social measures towards
employees, the latter placing SNCM in a more favourable
position than what would have resulted from the
market;

by CGMF

— the State aid of EUR 22,52 million, none of the grounds
permitting the conclusion that that aid was compatible
with Community guidelines having been verified in this
case;

— infringement of the principles of proportionality and of the
unitary nature of aid, in that the aid recipient SNCM did not
substantially contribute to the restructuring from its own
resources or from external financing obtained on market
conditions, and that the measures taken in 2006 constituted
unlawful support of an undertaking by the French Republic.

Action brought on 16 December 2008 — Repsol YPF
Lubricantes y especialidades and Others v Commission

(Case T-562/08)

(2009/C 44/106)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades, SA (Madrid,
Spain), Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA
(Madrid, Spain) (represented by: J Jiménez-Laiglesia Oñate and S.
Rivero Mena, lawyers)

— manifest errors of assessment concerning:

Defendant: Commission of the European Communities

— application of Article 86(2) EC to the capital contribu-
tion of EUR 53,48 million by way of public service
compensation,
inasmuch as that sum doubly compen-
sated the same public service obligations, giving rise to
rewarding of deficient
over-compensation and the
management and the inability of SNCM to improve its
productivity in an effective manner;

— the negative sale price of EUR 158 million for SNCM,
the
which cannot be free of elements of State aid;
Commission made an incorrect
the
interpretation of
conduct of a private investor in a market economy and
erred in holding that the risk of cumulation of liabilities

Form of order sought

— Annul Articles 1 and 2 of the Decision; and

— Order the Commission to pay the costs.

Pleas in law and main arguments

The decision which is the subject of the present action is the
same as that in Case T-540/08 Esso and Others v Commission.