Action brought on 18 September 2009 - E.ON Ruhrgas and E.ON v Commission

(Case T-360/09)

Language of the case: German

Parties

Applicants: E.ON Ruhrgas AG (Essen, Germany), E.ON AG (Düsseldorf, Germany) (represented by: G. Wiedemann and T. Klose, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul the contested decision;

in the alternative, reduce, as appropriate, the amount of the fine imposed on the applicants in the contested decision;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants challenge Commission Decision C(2009) 5355 final of 8 July 2009 in Case COMP/39.401 - E.ON/GDF. In the contested decision, a fine was imposed on the applicants and another undertaking for infringement of Article 81(1) EC, as they had participated in an agreement and concerted practices in the natural gas sector.

The applicants submit six pleas in support of their action.

First, the applicants question the applicability of Article 81(1) EC, as the agreements, criticised by the Commission, do not infringe the prohibition on cartels. In that regard, they claim, in particular, that they relate to permissible ancillary arrangements for the creation of the joint venture MEGAL.

Second, the applicants submit, in the alternative, that the Commission erred in law in assessing the duration of the infringement. In that regard, they claim that the agreements at issue came to an end shortly after the beginning of liberalisation and, in any event, with the formal termination agreement of 13 August 2004.

Third, the applicants complain of discrimination compared to the parties affected by the parallel Commission decisions of 26 October 2004 in the GDF/ENI and GDF/Enel cases. In that regard, they submit that in those cases the Commission, with reference to the liberalisation which had just occurred, refrained from imposing fines and, furthermore, that it should have done the same in the present case, since the cases are comparable - identical even - in all essential aspects.

Fourth, the applicants claim that the alleged 1975 agreements are already statute-barred, since they had been terminated more than five years before the Commission's examination.

Fifth, the applicants allege an error in law in the calculation of the fines.

Lastly, it is submitted that the Commission breached the principles concerning liability for competition law infringements, in that E.ON AG cannot be held directly, or indirectly, liable for the alleged infringements committed by E.ON Ruhrgas AG.

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