Action brought on 27 January 2010 - AC-Treuhand v Commission

(Case T-27/10)

Language of the case: German

Parties

Applicant: AC-Treuhand AG (Zurich, Switzerland) (represented by: C. Steinle and I. Hermeneit, lawyers)

Defendant: European Commission

Form of order sought

Annul Commission Decision C (2009) 8682 final of 11 November 2009 (Case COMP/38.589 - Heat stabilisers) in so far as it concerns the applicant;

in the alternative, reduce the amount of the fine imposed on the applicant in Article 2(17) and (38) of the decision;

order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

The applicant has brought an action against Commission Decision C (2009) 8682 final of 11 November 2009 (Case COMP/38.589 - Heat stabilisers). In the contested decision, fines were imposed on the applicant and other undertakings on the grounds of an infringement of Article 81 EC and - since 1 January 1994 - of Article 53 of the EEA Agreement. According to the Commission, the applicant participated in agreements and /or concerted practices in the market for tin stabilisers and in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied.

In support of its action, the applicant puts forward nine pleas in law.

First, the applicant claims that the Commission was wrong to assume that the cartel relating to tin stabilisers existed until 21 March 2000 and relating to ESBO/esters until 26 September 2000. The applicant submits in this respect that the cartel ceased its activity in the middle of 1999.

As the second plea in law, the applicant submits that the Commission's right to impose a fine on the applicant had become time-barred. The applicant claims that the binding limitation period of ten years ended in the middle of 1999. Further, the period of limitation was not suspended during the proceedings in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission.

By way of a third plea in law, the applicant claims that there has been an infringement of Article 81 EC and the principle of legality since, in its capacity as a consulting company, sanctions could not be imposed on the applicant under Article 81 EC. In this respect, the applicant submits that the wording of Article 81 EC does not comprise its conduct, and that, at the moment the offence was committed, such an interpretation of Article 81 EC could at any rate not be envisaged.

In the alternative, the applicant criticises, by way of the fourth, fifth and sixth plea, errors made by the Commission in respect of the assessment of the fine. In detail, the applicant submits that no more than a symbolic fine could have been imposed on the applicant since it could not be envisaged, at the moment the offence was committed, that Article 81 EC would be interpreted to also comprise consulting companies. Further, the Guidelines on the method of setting fines ¹ have been infringed, since the fine should not have been set at a flat-rate, but calculated in relation to the fee which the applicant received for its services. Furthermore, the Commission infringed the ten-percent ceiling provided for in the second sentence of Article 23(2) of Regulation (EC) No 1/2003² because a single offence was committed only. In this respect, the applicant submits further that the fines imposed threaten its existence and are incompatible with the whole purpose of that ceiling.

In the context of the three final pleas, the applicant claims that procedural errors were made. The applicant claims an infringement of the principle that cases must be disposed of within a reasonable time (seventh plea), and criticises that the applicant was informed too late of the investigation opened against it (eighth plea) and that the contested decision was not properly notified to the applicant (ninth plea).

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¹ - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p.2)

² - 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)