Action brought on 27 January 2010 - BASF Specialty Chemicals and BASF Lampertheim v Commission
(Case T-25/10)
Language of the case: German
Parties
Applicants: BASF Specialty Chemicals Holding GmbH (Basel, Switzerland), BASF Lampertheim GmbH (Lampertheim, Germany) (represented by: F. Montag and T. Wilson, lawyers)
Defendant: European Commission
Form of order sought
Annul Article 1(1)(q) and Article 1(2)(q) of Decision C (2009) 8682 final of 11 November 2009 (Case COMP/38.589 - Heat stabilisers) concerning BASF Specialty Chemicals Holding GmbH, Article 1(1)(r) and Article 1(2)(r) of the decision concerning BASF Lampertheim GmbH as well as Article 2(15) and (36) of the decision concerning both applicants;
in the alternative, reduce appropriately the amount of the fine imposed on the applicants in Article 2(15) and (36) of the decision;
order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
The applicants have brought an action against Commission Decision C (2009) 8682 of 11 November 2009 in Case COMP/C38.589 - Heat stabilisers. In the contested decision, the Commission imposed fines on the applicants and other undertakings in respect of infringements of Article 81 EC and - since 1 January 1994 - of Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a series of agreements and/or concerted practices in the market for tin stabilisers and in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied.
In support of their action, the applicants have submitted three pleas in law.
First, the applicants invoke an infringement of Article 25 of Regulation (EC) No 1/2003,
1 since the defendant's right to impose fines on the applicants had become time-barred. Contrary to the Commission's view, the applicants take the view that the provisions of Article 25(6) of Regulation No 1/2003 regarding the suspension of the limitation period do not apply to the applicants.
Second, the applicants claim that the contested decision breaches Article 101(1) TFEU in conjunction with Article 23(2) of Regulation No 1/2003, since for the most part, the infringements may not be imputed to BASF Specialty Chemicals Holding GmbH, so that no fine should have been imposed on the undertaking in this regard. In this respect, the applicants also submit that the Commission thereby infringed Article 23(2) of Regulation No 1/2003 when it set the fine for BASF Lampertheim GmbH, since in determining the 10% ceiling for the fine for periods during which BASF Specialty Chemicals Holding GmbH was not liable, it should have taken into account the turnover of BASF Lampertheim GmbH only.
Finally, by way of a third plea in law, the applicants claim that there has been an infringement of Article 23(2) and (3) of Regulation No 1/2003 in conjunction with the Guidelines on the method of setting fines,
2 since the Commission did not sufficiently reduce the fines imposed on the applicants. The applicants submit that the Commission should have taken greater account of the unreasonably long duration of the administrative procedure and the applicants' cooperation under the leniency notice.
3 Further, the active cooperation of the applicants outside the leniency notice should have been taken into account for the purposes of the reduction of the fine.