Action brought on 17 December 2008 - Total Raffinage Marketing v Commission

(Case T-566/08)

Language of the case: French

Parties

Applicant: Total Raffinage Marketing SA (Puteaux, France) (represented by: A. Vandencasteele, C. Falmagne, C. Lemaire and S. Naudin, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

annul, in part, Articles 1 and 2 of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 - Candle waxes);

very substantially reduce the amount of the fine imposed on Total R.M. by Article 2 of that decision;

order the Commission to pay all of the costs.

Pleas in law and main arguments

By its present action, the applicant seeks the annulment, in part, of Commission Decision C(2008) 5476 final of 1 October 2008 in Case COMP/39.181 - Candle waxes, in which the Commission found that certain undertakings, including the applicant, infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area, by price-fixing and sharing markets in paraffin waxes in the European Economic Area (EEA), and slack wax in Germany.

In support of its action, the applicant puts forward 11 pleas in law alleging infringement of: Article 81 EC; the duty to state reasons; the 2006 Guidelines on the method of setting fines; ¹ and the principles of proportionality, the presumption of innocence, legal certainty, equal treatment and that the penalty should fit the offence, in that the Commission:

held that the practices relating to waxes and paraffin, on the one hand, and to slack wax, on the other, constituted a single and continuous infringement, and held the practices in relation to slack wax to be an agreement;

wrongly found a single and continuous infringement consisting of an agreement for price-fixing; market and/or customer sharing, even if it was merely an exchange of information concerning the state of the paraffin market; prices and future strategies in relation to tariffs; the customers and the volumes which could be attributed to the applicant;

first, misinterpreted the Community case-law on undertakings publicly distancing themselves by holding the applicant responsible for the entire duration of the wax and paraffin aspect of the cartel, although the applicant had ceased to participate in 'technical meetings' after the meeting of 11 and 12 May 2004, that is to say, nearly one year before the end of the infringement and, second, allowed the intended withdrawal of Repsol from the cartel before the end of the infringement, and not that of the applicant, although the applicant was in an equivalent situation;

required the applicant to prove that it publicly distanced itself from the cartel;

did not take account of the applicant's failure to implement the cartel;

used the value of sales from the last three financial years in which the applicant had participated in the cartel, instead of the value of sales for the last year in which it had participated;

found a percentage of the value of sales for the slack wax aspect of the infringement which was too high;

applied the method for setting the fine laid down in point 24 of the Guidelines which is contrary to Article 23(3) of Regulation No 1/2003 and to the principles of proportionality, equal treatment and presumption of innocence;

applied an additional amount for deterrent effect without, however, providing sufficient reasons for that;

imposed a fine representing 410% of the turnover obtained in one year by the applicant on the relevant market;

held the parent company, Total SA, responsible for the applicant's behaviour.

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¹ - 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).