Action brought on 18 December 2007 - Repsol YPF Lubricantes y especialidades and Others v Commission

(Case T-496/07)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades SA (Madrid, Spain) Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA (Madrid, Spain) (represented by: L. Ortiz Blanco, J. Buendía Sierra and M. Muñoz de Juan, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the Decision [C (2007) 4441] to the extent that it

Attributes joint and several liability for the infringement to Repsol Petróleo, SA;

Attributes joint and several liability and affiliate liability to Repsol YPF, SA;

Determines the basic amount in a manner contrary to the principle of proportionality by not taking into account either the restricted geographic extent and economic value of the market affected or the effects on the market (which failing, the slight impact);

applies incorrectly the Notice on leniency, in particular in relation to the percentage reduction of the fine granted to Repsol: and

treats leadership as an aggravating factor

Reduce the fine imposed on Repsol in the exercise of the Court's unlimited jurisdiction to an appropriate amount;

order the Commission to pay the costs of these proceedings.

Pleas in law and main arguments

The action is directed against Commission Decision C (2007) 4441 final of 3 October 2007in the Case COMP/38710 - Bitumen Spain. In the contested decision, the Commission declared that the applicant, together with other companies, had infringed Article 81 EC by having taken part, over a certain period, in a set of agreements and concerted practices in the market for penetration bitumen, namely agreements for sharing the market and coordinating prices. In respect of those infringements the Commission imposed a fine for which the applicants are jointly and severally liable.

In support of their claims, the applicants allege first an error of assessment of the facts and an error of law in the incorrectly attribution of responsibility for the infringement to the parent companies of Repsol YPF Lubricantes y especialidades SA. In that context, the applicants consider that the attribution of affiliate liability contravenes Community law.

Secondly, the applicants allege that the Commission infringed the principle of proportionality in calculating the initial amount.

Thirdly, the applicants allege a manifest error of assessment or alternatively an infringement of the general principles of protection of legitimate expectations, proportionality and equal treatment in determining the percentage reduction of the fine in accordance with the Notice on cooperation of 2002¹.

Lastly, the applicants consider that the Commission committed a manifest error of assessment in relation to the evaluation leadership of the cartel jointly with another company as an aggravating factor.

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¹ - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002, C 45, p. 3)