Action brought on 16 December 2008 - Total v Commission

(Case T-548/08)

Language of the case: French

Parties

Applicant: Total SA (Courbevoie, France) (represented by: E. Morgan de Rivery and A Noël-Baron, lawyers)

Defendant: Commission of the European Communities

Form of order sought

as the main plea, annulment under Article 230 EC of the decision of the Commission of the European Communities No C(2008) 5476 final of 1 October 2008, in so far as it concerns TOTAL SA;

in the alternative, annulment under Article 230 EC of the fine of EUR 128 163 000 imposed jointly and severally on TOTAL FRANCE and TOTAL SA by Article 2 of the above-mentioned decision;

further in the alternative, reduction of the said fine pursuant to Article 229 EC;

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

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of the Commission's decision C(2008) 5476 final, of 1 October 2008, in case COMP/39.181 - Candle waxes, in which the Commission found that certain undertakings, including the applicant, had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area by fixing prices and partitioning the markets for paraffin waxes in the European Economic Area (EEA) and gatsch in Germany.

In support of its action, the applicant makes nine pleas in law, claiming:

infringement of the rights of the defence and the presumption of the applicant's innocence, inasmuch as the contested decision infringed the scope ratione personae of those rights and by reason of procedural irregularities during the investigation phase and circular reasoning in the decision itself;

contradiction in reasoning as regards (i) the need to verify whether the parent company actually exercised a decisive influence over its subsidiary and (ii) the content of the control which a parent company must exercise over its subsidiary for it to be possible to impute the infringement to the parent company;

infringement of the rules governing the imputability of infringements of Article 81 EC amongst groups of companies, inasmuch as (i) the contested decision erroneously stated that the Commission was not required to produce evidence supporting the presumption and (ii) the contested decision infringed the principle of legal and economic autonomy of any subsidiary on which national company laws are based;

manifest error of assessment, inasmuch as (i) the appointment of TOTAL FRANCE board members by TOTAL SA did not strengthen the presumption of decisive influence and (ii) the evidence produced by TOTAL SA enabled the presumption of decisive influence to be definitively rebutted;

infringement of the principles of liability for one's own actions and the limitation of sanctions to the person concerned, and of the principle of legality, in that the Commission found the existence of an economic unity between TOTAL SA and TOTAL FRANCE;

infringement of the principles of legal certainty and sound administration, inasmuch as the imputability to TOTAL SA of the infringement allegedly committed by its subsidiary TOTAL FRANCE was based on a new criterion and (ii) the Commission did not assess the situation on a case-by-case basis as it had stated it would do;

misuse of powers, the object of Regulation No 1/2003 being to penalise an undertaking for committing an infringement of the competition rules and not to maximise the penalty on that company by involving the parent company;

infringement of the principle of proportionality in that the final amount of the fine imposed on the applicant and its subsidiary were entirely disconnected from the value of the product sales in relation to the infringement alleged by the decision; and

reduction of the fine, the practices alleged being neither as serious or as long in duration as the Commission claims, and the rights of the defence having been seriously infringed.

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