Action brought on 16 February 2007 - Dow Chemical and Others v Commission

(Case T-42/07)

Language of the case: English

Parties

Applicants: The Dow Chemical Company (Midland, United Sates of America), Dow Deutschland Inc. (Schwalbach, Germany), Dow Deutschland Anlagengesellschaft mbH (Schwalbach, Germany), Dow Europe GmbH (Horgen, Switzerland) (represented by: D. Schroeder, P. Matthey, T. Graf, lawyers)

Defendant: Commission of the European Communities

Form of order sought

The Dow Chemical Company respectfully requests the Court to annul the decision insofar as it relates to it;

Dow Deutschland Inc. respectfully requests the Court to annul Article 1 of the decision insofar as it finds that Dow Deutschland Inc. infringed Articles 81 EC and 53 EEA from 1 July 1996;

all applicants (and the Dow Chemical Company in the alternative) respectfully request the Court to substantially reduce their fines;

all applicants respectfully request the Court

to order the Commission to pay the applicants' legal and other costs and expenses in relation to this matter as well as the costs incurred by the applicants in providing a bank guarantee in lieu of the applicants' fines pending judgment by this Court; and

to take any other measures that this Court considers appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek partial annulment of Commission Decision C(2006) 5700 final of 29 November 2006 in Case COMP/F/38.638 - Butadiene Rubber and Emulsion Styrene Butadiene Rubber, by which the Commission found that the applicants, together with other undertakings had infringed Article 81 EC and Article 53 EEA by agreeing on price targets for the products, sharing customers by non-aggression agreements and exchanging sensitive commercial information relating to prices, competitors and customers in the Butadiene Rubber and Emulsion Styrene Butadiene Rubber sectors.

In support of their application, the applicants advance three principal pleas:

By the first plea, divided into three branches, The Dow Chemical Company (hereinafter 'TDCC') submits that the Commission erred in law; a) in finding that TDCC had committed an infringement based on the assumption that a wholly-owned subsidiary essentially follows the instructions given by the parent company without verifying whether the parent company had in fact exercised such power; b) in imposing a fine on it, holding it responsible for infringements committed by its subsidiaries; and c) without exercising its discretion, in deciding whether or not to address its decision to TDCC.

By the second plea, the Dow Deutschland Inc. and TDCC contend that the Commission erred in fact and law in determining the duration of Dow Deutschland Inc.'s participation in the infringement by choosing 1 July 1996 as the starting date of the infringement.

By the third plea, the applicants claim that the Commission made factual and legal errors in calculating the basic amount of the fines imposed on them. Precisely, errors were allegedly made in relation to the assessment of the gravity of the infringement, the differential treatment applied by the Commission to the starting amounts, the multiplier applied by the Commission in order for the fines to have sufficient deterrent effect and, finally, to the increase of the starting amount of the fines in view of the duration of the infringement.

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