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Action brought on 29 January 2010 - Elementis e.a. v Commission

(Case T-43/10)

Language of the case: English

Parties

Applicants: Elementis plc, Elementis Holdings Ltd, Elementis UK Ltd and Elementis Services Ltd (London, United Kingdom) (represented by: T. Wessely, A. de Brousse, E. Spinelli, lawyers and A. Woods, Solicitor)

Defendant: European Commission

Form of order sought

Annul the decision of the European Commission of 11 November 2009 No C(2009)8682 in Case COMP/38589 - Heat Stabilisers insofar as it relates to the applicants;

in the alternative, annul or substantially reduce the amount of the fines imposed on the applicants pursuant to the decision;

order the defendant to pay the costs of the proceedings, including costs incurred by the applicants associated with payment in whole or in part of the fine;

take any other measures that the General Court considers to be appropriate.

Pleas in law and main arguments

By means of their application, the applicants seek the annulment, pursuant to Article 263 TFEU, of Commission's decision of 11 November 2009 No C(2009)8682 in Case COMP/38589 - Heat Stabilisers, by which a number of undertakings, including the applicants, were held liable for an infringement of Articles 81 EC (now 101 TFEU) and 53 EEA, by participating in two cartels that affected, respectively, the tin stabilisers sector and the ESBO/esters stabiliser sector throughout the EEA.

The pleas in law and main arguments raised by the applicants are the following:

First, the applicants submit that the Commission committed an infringement of law in adopting a fining decision against the applicants in breach of the rules on limitation contained in Articles 25(5) and 25(6) of Council Regulation (EC) No 1/2003 (hereinafter "Regulation No 1/2003") on the implementation of the rules on competition laid down in Articles 81 and 82 EC (now 101 and 102 TFEU)¹. According to Article 25(5) of Regulation No 1/2003, the absolute limitation period beyond which the Commission may not impose sanctions for antitrust violations is 10 years from the date that the infringement ceased. Accordingly, the applicants put forward that the decision taken over 11 years after the end of the applicants' infringement (2 October 1998) was adopted in violation of the said provision. Further, the applicants submit that the Commission's position on the legality of the fine despite the expiry of the ten year period rests on its erga omnes interpretation of the suspension of the limitation period provided for in Article 25(6) of Regulation No 1/2003, which, according to the applicants is flawed.

Second, the applicants claim that the Commission infringed the applicants' rights of defence as the excessive duration of the fact-finding phase of the investigation undermined the ability of the applicants to effectively exercise their rights of defence in this procedure.

Third, the applicants contend that the Commission committed manifest errors in calculating the fine imposed on the applicants by wrongfully basing the fines imposed (i) in relation to the pre-joint venture period; and (ii) for deterrence, on the turnover achieved by the Akcros joint venture rather than on the turnover achieved by the applicants. According to the applicants, the fines should be reduced by 50 %.

Fourth, the applicants submit that the Commission committed manifest errors of law and infringed the principles of legal certainty, personal responsibility and proportionality by failing to specify the amount of the fine (imposed jointly and severally on the applicants) which is to be paid by the applicants.

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¹ - OJ 2003 L 1, p. 1