Action brought on 5 October 2009 - Evonik Degussa and AlzChem Hart v Commission
(Case T-391/09)
Language of the case: German
Parties
Applicants: Evonik Degussa GmbH (Essen, Germany) and AlzChem Hart GmbH (Trostberg, Germany) (represented by: C. Steinle, O. Andresen and I. Hermeneit, lawyers)
Defendant: Commission of the European Communities
Form of order sought
Annul Commission Decision C (2009) 5791 final of 22 July 2009 (Case COMP/39.396 - Calcium carbide and magnesium based reagents for the steel and gas industries) in so far as it concerns the applicants;
in the alternative, reduce the fine imposed on the applicants under Article 2(g) and (h) of the decision referred to;
in the alternative, in the event that point 1 of the application is dismissed, amend Article 2(g) and (h) of the decision in such a way as to make SKW Stahl-Metallurgie GmbH jointly and severally liable for the full amount of the fine imposed on the applicants;
order the Commission to pay the costs of the proceedings.
Pleas in law and main arguments
The applicants contest Commission Decision C (2009) 5791 final of 22 July 2009 in case COMP/39.396 - Calcium carbide and magnesium based reagents for the steel and gas industries. The contested decision imposed a fine on the applicants and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicants participated in a single and continuous infringement in the calcium carbide and magnesium sector in the EEA, except in Spain, Portugal, Ireland and the United Kingdom, which consisted in market sharing, agreements on quotas, customer allocations, price fixing and exchange of sensitive information relating to prices, customers and sales volumes.
In support of their action, the applicants submit, first, that they have not infringed Article 81 EC. In that regard, they submit, in particular, that they cannot be held liable for an infringement committed by their former subsidiary, SKW Stahl-Metallurgie GmbH, since neither they nor their legal predecessors formed an economic unit with that company. Instead, the applicants have proved that their legal predecessors did not exercise decisive influence over SKW Stahl-Metallurgie GmbH. Accordingly, the defendant has also infringed the principle of personal responsibility, the presumption of innocence, the fault principle and the fault requirement.
Furthermore, the applicants also object to the fine imposed on them. In that regard, they submit that the contested decision is contrary to Article 23(3) of Regulation (EC) No 1/2003
1 and to the Guidelines on setting fines,
2 as well as to the Leniency Notice,
3 the principle of equal treatment and the principle of proportionality.
Finally, the applicants submit that the Commission failed to fulfil its obligation to state reasons in accordance with Article 253 EC in respect of its findings concerning the joint and several liability of SKW Stahl-Metallurgie GmbH.
____________1 - Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).2 - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).3 - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).