Action brought on 6 October 2009 - Arques Industries v Commission

(Case T-395/09)

Language of the case: German

Parties

Applicant: Arques Industries AG (Starnberg, Germany) (represented by: C. Grave, B. Meyring and A. Scheidtmann, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul Articles 1, 2, 3 and 4 of Commission Decision C (2009) 5791 final of 22 July 2009 in Case COMP/39.396 - Calcium carbide etc in so far as the decision is addressed to the applicant;

in the alternative, reduce the fine imposed on the applicant under Article 2(f) of the decision;

in the alternative, annul Articles 1 and 3 of the decision in so far as they concern the applicant; and

order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests 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 applicant and on other undertakings for infringement of Article 81 EC and Article 53 of the EEA Agreement. According to the Commission, the applicant 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.

The applicant puts forward eight pleas in law in support of its action, which are set out in three parts.

By the first part, the applicant seeks to have the contested decision annulled in so far as the applicant was found jointly and severally liable for the conduct of SKW Stahl-Metallurgie GmbH, and relies in that respect on the following pleas in law:

erroneous application of Article 81(1) EC and of Article 23(2) of Regulation (EC) No 1/2003 ¹ in that the Commission deemed the applicant to be jointly and severally liable with SKW Stahl-Metallurgie GmbH;

infringement of Article 253 EC since the Commission did not give reasons for the exercise of its discretion in relation to the applicant's liability as a former parent company;

erroneous application of Article 81, since the defendant erred in law in its assumption as to the existence of a single and continuous infringement.

By the second part, the applicant seeks, in the alternative, a reduction of the amount of the fine imposed on it, and relies in that respect on the following pleas in law:

infringement of Article 253 EC since the contested decision is inherently contradictory as regards the level of the fine;

infringement of Article 23 of Regulation No 1/2003 since the Commission erred in its assessment of the gravity and duration of the infringement;

infringement of the general principle of equal treatment in relation to the gravity and duration of the infringement assumed by the Commission;

infringement of Article 23 of Regulation No 1/2003 since the Commission failed to take account of the mitigating circumstance that the applicant expressly did not dispute the Commission's findings in the administrative procedure.

In the third part, the applicant applies, in the alternative, for Articles 1 and 3 of the contested decision to be annulled in so far as they concern the applicant, since they are based on the erroneous application of Article 81 EC and Article 7 of Regulation No 1/2003 and are contrary to Article 253 EC.

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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).