Action brought on 16 February 2007 - Kaučuk v Commission

(Case T-44/07)

Language of the case: English

Parties

Applicant: Kaučuk a.s. (Kralupy nad Vltavou, Czech Republic) (represented by: M. Powell and K. Kuik, solicitors)

Defendant: Commission of the European Communities

Form of order sought

Annul Articles 1 to 3 of the contested decision in whole or in part insofar as they are addressed to the applicant;

alternatively, annul Article 2 of the contested decision insofar as it imposes a fine of EUR 17.55 million on Kaučuk and fix a substantially lower fine; and

order the European Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision C(2006) 5700 final of 29 November 2006 in Case COMP/F/38.638 - Butadiene Rubber and Emulsion Styrene Butadiene Rubber, by which the Commission found that the applicant, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by agreeing on price targets for the products, sharing customers by non-aggression agreements and exchanging commercial information relating to prices, competitors and customers.

In support of its application, the applicant submits that the Commission:

erred in law by imputing the conduct of its sales intermediary Tavorex, an independent legal entity, to the applicant;

erred by failing to prove to the requisite legal standard that Tavorex was involved in a single and continuous infringement from November 1999 until November 2002;

committed a manifest error of appreciation by finding the same facts sufficient to prove Tavorex's involvement but insufficient to prove the involvement of another producer;

erred in law by applying EC competition law to the applicant and Tavorex without establishing a sufficient connection between the applicant/Tavorex, the activity concerned and the territory of the European Communities contrary to the case law on extraterritorial application of EC competition law;

committed a manifest error of law and appreciation in finding that the applicant, through Tavorex, committed an infringement regarding butadiene rubber, a product the applicant neither produces nor sells;

failed to establish, for the purposes of setting the fine, whether the applicant, through Tavorex, committed the infringement intentionally or negligently; and

committed a manifest error of law and appreciation by failing to apply its Fining Guidelines.

____________