Action brought on 1 October 2010 - Timab Industries and CFPR v Commission

(Case T-456/10)

Language of the case: French

Parties

Applicants: Timab Industries (Dinard, France) and Cie financière et de participations Roullier (CFPR) (Saint-Malo, France) (represented by: N. Lenoir, lawyer)

Defendant: European Commission

Form of order sought

principally, annul the decision;

in the alternative, annul Article 1 of the Decision in particular in so far as it states that CFPR and Timab participated in practices relating to sales conditions and a compensation system;

in any event, amend Article 2 of the Decision and reduce substantially the fine imposed jointly and severally on CFPR and Timab;

order the Commission to pay all the costs.

Pleas in law and main arguments

The applicants seek, principally, annulment of Commission Decision C(2010) 5001 final of 20 July 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area ('EEA') (Case COMP/38866 - Animal feed phosphates) concerning a cartel in the European animal feed phosphates market relating to the allocation of sales quotas, the coordination of prices and sales conditions and the exchange of commercially sensitive information.

The applicants put forward eight pleas in support of their action:

-    infringement of the rights of the defence, the principle of the protection of legitimate expectations and the principle of sound administration, and of Regulation No 773/2004 ¹ and the Notice on the conduct of settlement procedures ² on account of the fact that the applicants were penalised for the fact that they withdrew from settlement discussions under Article 10a of Regulation No 773/2004, in so far as the likely fine that the Commission had set at the stage of the settlement discussions was subsequently increased by 25%, whereas (i) the likely fine must not increase by more than 10% following discontinuation of participation in the settlement procedure and (ii) the duration of the infringement was reduced by 60%;

-    inadequate and contradictory grounds and infringement of the rights of the defence and the burden of proof inasmuch as practices in which the applicants did not participate were imputed to them, although the Commission possessed no evidence of such participation;

-    infringement of the principle of non-retroactivity of the more punitive law and infringement of the principles of the protection of legitimate expectations, equal treatment and legal certainty, since the amount of the fine was determined pursuant to the 2006 Guidelines, ³ whereas the infringement imputed took place before the publication of those guidelines; that retroactive application of the 2006 Guidelines increased the amount of the fine;

-    infringement of Article 23 of Regulation No 1/2003, ⁴ the principle of proportionality, the principle that penalties must fit the offence and the principle of equal treatment, since the fine imposed does not reflect either the duration or the gravity of the practices;

-    a manifest error of assessment of the gravity of the practices alleged against the applicants and infringement of the principle of equal treatment, the principle of proportionality and the principle that penalties must fit the offence when the basic amount is set, since the Commission failed to take account of the fact that the infringement had no significant effects and that Timab participated in the cartel to a lesser extent than the other participants;

-    an error of assessment and infringement of the principle that penalties must fit the offence and the principle of equal treatment inasmuch as the Commission refused to grant the applicants the benefit of any attenuating circumstances despite their dependence on one of the other cartel participants and despite Timab's competitive conduct;

-    infringement of the rights of the defence, the principle of equal treatment and the Leniency Notice, ⁵ in so far as the reduction of the fine granted to the applicants in respect of leniency at the stage of the settlement discussions was considerably reduced after the applicants withdrew from those discussions;

-    a manifest error of assessment of the applicants' ability to pay and infringement of the principle of equal treatment and the combined provisions of Article 3 TEU and Protocol No 17 annexed to the Treaty of Lisbon inasmuch as the Commission applied the provisions of the 2006 Guidelines on the applicants'ability to pay without taking account either of the exceptional circumstances arising from the crisis afflicting European agriculture or of the economic and social constraints specific to the applicants.

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¹ - Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18).

² - Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1).

³ - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).

⁴ - Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).

⁵ - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).