Action brought on 29 January 2010 - Elf Aquitaine v Commission

(Case T-40/10)

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery, S. Thibault-Liger and A. Noël-Baron, lawyers)

Defendant: European Commission

Form of order sought

annul, on the basis of Article 263 of the Treaty on the Functioning of the European Union (TFEU), the whole of [Commission] Decision No C(2009) 8682 final of 11 November 2009 in Case COMP/38589 - Heat Stabilisers in so far as it concerns Elf Aquitaine;

in the alternative, annul, on the basis of Article 263 TFEU:

Article 2(11), (13), (28) and (30) of Commission Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it imposes (i) two fines of EUR 3 864 000 and EUR 7 154 000 jointly and severally on Arkema France, CECA and Elf Aquitaine and (ii) two fines of EUR 2 704 800 and EUR 5 007 800 on Elf Aquitaine alone; and

Article 1(1)(h) and (2)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 in so far as those two provisions state that Elf Aquitaine infringed Article 81 EC and Article 53 EEA respectively (i) in the tin stabilisers sector between 16 March 1994 and 31 March 1996 and between 9 September 1997 and 21 March 2000 and (ii) in the ESBO/esters sector between 11 September 1991 and 26 September 2000;

in the further alternative :

annul, on the basis of Article 263 TFEU, Article 1(1)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it states that Elf Aquitaine infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996;

and reduce, on the basis of Article 261 TFEU:

the fines of EUR 3 864 000 and EUR 7 154 000 imposed jointly and severally on Arkema France, CECA and Elf Aquitaine by Article 2(11) and (28) respectively of Commission Decision No C(2009) 8682 final of 11 November 2009; and

the fines of EUR 2 704 800 and EUR 5 007 800 imposed on Elf Aquitaine by Article 2(13) and (30) respectively of Commission Decision C(2009) 8682 final of 11 November 2009;

in any event, order the European Commission to pay all of the costs.

Pleas in law and main arguments

In the present case, the applicant is seeking the annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.859 - Heat Stabilisers) concerning cartels in the markets for tin stabilisers and ESBO/esters heat stabilisers throughout the EEA involving price-fixing, the allocation of markets and the exchange of sensitive commercial information or, in the alternative, the cancellation or the reduction of the fine imposed on the applicant.

The action is based, primarily, on two pleas for the annulment of the whole of the decision. The first plea alleges infringement of the applicant's rights of defence. In the second plea, the applicant alleges that the decision is vitiated by a number of errors of law relating to liability for infringements committed by its subsidiary Arkema and its lower-tier subsidiary CECA.

The action is also based on two pleas in the alternative, and two pleas in the further alternative. In the third plea (in the alternative), the applicant alleges a number of errors of law which must lead, at the very least, to the cancellation of the four fines which were imposed on it under Article 2 of the decision. In the fourth plea (in the alternative), the applicant considers that were the Court to uphold the third plea, it should also annul Article 1 of the decision in so far as it concerns the applicant. In the fifth plea (in the further alternative), if the Court were to reject the first part of the third plea concerning the infringement of the limitation rules, the applicant considers that, at the very least, Article 1(1)(h) of the decision should be annulled inasmuch as it states that the applicant infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996. In the sixth plea (in the further alternative), the applicant submits that if the Court were to reject the two principal pleas and the third plea submitted in the alternative, the infringement of its rights of defence should, at the very least, lead to a reduction of the four fines which were imposed on it.

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