Action brought on 1 August 2008 - Elf Aquitaine v Commission

(Case T-299/08)

Language of the case: French

Parties

Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: E.Morgan de Rivery, S.Thibault-Liger, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul, pursuant to Article 230 EC, the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008 in so far as it concerns Elf Aquitaine;

in the alternative:

annul or reduce, pursuant to Article 229 EC, the fine of EUR 22 700 000 imposed jointly and severally on Arkema France SA and Elf Aquitaine by Article 2(c) of the Decision of the Commission of the European Communities No C(2008) 2626 final of 11 June 2008;

annul or reduce, pursuant to Article 229 EC, the fine of EUR 15 890 000 imposed on Elf Aquitaine by Article 2(e) of the Decision of the European Communities No C(2008) 2626 final of 11 June 2008;

in any event, order the Commission of the European Communities to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks the partial annulment of Commission Decision C(2008) 2626 final of 11 June 2008 in Case COMP/38.695 - Sodium chlorate, in which the Commission declared that certain undertakings, including the applicant, had infringed Article 81(1) EC and Article 53(1) of the European Economic Area Agreement by allocating sales volumes, fixing prices, exchanging sensitive commercial information about prices and sales volumes and by monitoring the implementation of those anti-competitive agreements in the market for sodium chlorate in the European Economic Area.

In support of its claims, the applicant relies on eleven pleas in law based on:

infringement of the rules governing the responsibility for offences within corporate groups in so far as (i) the Commission incorrectly stated that it was not obliged to adduce evidence supporting the presumption that a holding company which owns 100% of a subsidiary has a decisive influence over the latter; (ii) the evidence actually relied upon by the Commission did not such support this presumption and (iii) the Commission rejected the body of evidence presented by the applicant with a view to overturning that presumption;

infringement of the applicant's right to a fair hearing and the principles of equality of arms, the presumption of innocence, individual responsibility and appropriateness of the punishment, of legality and equal treatment as regards the imputation of liability;

distortion of the body of evidence adduced by the applicant;

conflicting reasons with regard to the concept of an undertaking for the purposes of Article 81(1) EC, with regard to the independence of the subsidiary Arkema France vis-à-vis the applicant and to the degree and nature of control that must be exercised by a holding company over its subsidiary for it to be held responsible for the breaches of the latter;

infringement of the principle of sound administration in so far as the Commission (i) did not carefully and impartially examine all the relevant evidence, (ii) did not apply the same rules to itself as it applied to the parties and (iii) did not suspend the proceedings initiated against the applicant pending the passing of judgment in relevant cases pending before the Court of First Instance;

infringement of the principle of legal certainty, since the Commission did not follow criteria applied in previous decisions with respect to the responsibility of a holding company for the breaches a subsidiary;

an abuse of power, since the penalties imposed deviated from their legitimate purpose, that being to punish an undertaking for having committed an infringement;

the unfounded nature of the imposition of a fine specific to the applicant in infringement of the principle of the autonomy of a legal person and the taking of the deterrent effect into account twice whilst fixing the level of the fine;

infringement of the principles and rules concerning the calculation of fines;

infringement of the leniency notice ¹ by alleging that the evidence adduced by the subsidiary Arkema France was insufficient; and

the fact that it is inequitable to impose the heaviest penalty on the applicant by means of two separate fines when the responsibility of the subsidiary Arkema France was significantly less than that of EKA and Finnish Chemicals.

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¹ - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).