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Action brought on 27 January 2010 - Arkema France v Commission

(Case T-23/10)

Language of the case: English

Parties

Applicant: Arkema France (Colombes, France) (represented by: J. Joshua, Barrister, E. Aliende Rodríguez, lawyer)

Defendant: European Commission

Form of order sought

Annul Articles 1(1) and (2) of Commission's decision C(2009)8682 of 11 November 2009 insofar as it relates to the applicant and, in any event, annul Article 1(1) insofar as it finds that the applicant participated in an infringement in tin stabilisers between 16 March 1994 and 31 March 1996,

cancel the fines imposed on the applicant in Article 2;

if the Court does not annul the fines in their entirety, substantially reduce them pursuant to its full jurisdiction;

order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, annulment is sought of Commission's decision of 11 November 2009 in Case COMP/38.589-Heat stabilisers which finds that the applicant participated in two separate infringements of Article 81 EC (now Article 101 TFEU), one in tin stabilisers and one in ESBO, and imposes a fine for each product.

The applicant puts forward the following pleas in law in support of its application:

First, it is submitted that, on a proper application of Article 25 of Regulation (EC) No 1/2003¹, the Akzo litigation² did not suspend the running of time and the Commission's power to impose fines was time-barred for both infringements under the ten year "double limitation" rule. The applicant claims that the Commission erred in law by finding that the period the Akzo proceedings were before the Court operated to suspend the running of time and wrongly concluded that the ten year limit provided for in Article 25(5) of the abovementioned Regulation could be extended in the present case.

Second, the applicant claims that the Commission has demonstrated no legitimate interest in making a declaratory finding of infringements in respect of which it had no power to impose fines. In fact, the applicant submits that Article 7 of Regulation (EC) No 1/2003 allows the Commission to make a declaratory finding that an infringement has been committed if it does not impose a fine, provided that the it is demonstrated that the Commission has a legitimate interest.

Third, and independently of the two first pleas, the applicant requests the Court to annul the declaratory finding enshrined in Article 1(1) of the contested decision on the basis of which it had participated in an infringement in tin stabilisers during the period 16 March 1994 - 31 March 1996 and contends that the Commission has demonstrated no legitimate interest in making such a finding.

Fourth, and if the Court does not annul the fines in their entirety, the applicant contends that the Commission has not proved duration beyond 23 February 1999 and that therefore the fine imposed for the second cartel period should be reduced to reflect a shorter duration of the infringements.

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¹ - Council Regulation (EC) 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 - Judgment of the General Court of 17 September 2007, in Joined Cases T-125/03 and T-253/03, Akzo Nobel Chemicals et Akcros Chemicals/Commission, [2007], ECR II-3523