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Action brought on 27 January 2010 - Akzo Nobel e.a. v Commission

(Case T-47/10)

Language of the case: English

Parties

Applicants: Akzo Nobel NV (Amsterdam, Netherlands), Akzo Nobel Chemicals GmbH (Düren, Germany), Akzo Nobel Chemicals B.V. (Amersfoort, Netherlands), Akcros Chemicals Ltd (Stratford-upon-Avon, United Kingdom) (represented by: C. Swaak, and Marc van der Woude, lawyers)

Defendant: European Commission

Form of order sought

to annul Articles 1 (1) and (2) of the contested decision in whole or in part, and/or

reduce the fines imposed by Articles 2 (1) and (2) of the contested decision, and/or

declare that Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. cannot be held liable for the infringements before 1993, that Akzo Nobel N.V. cannot be held liable for the infringement for the period between 1987 to 1998, neither individually nor jointly with undertakings belonging to the Elementis group;

condemn the Commission to costs of the proceedings.

Pleas in law and main arguments

The applicants seek the annulment of the Commission Decision of 11 November 2009 (Case No COMP/38.589-Heat Stabilisers) in so far as the Commission found the applicants liable for an infringement of Article 8l EC (now Article 101 TFEU) and Article 53 EEA by colluding to fix prices, allocating markets through sales quotas, allocating customers and exchanging commercially sensitive information in particular on customers, production and sales in the tin stabilisers sector. Alternatively, the applicants seek a substantial reduction of the fine imposed upon it.

The applicants submit that in attributing liability to them, the Commission has made several errors in law and in fact and they put forward three pleas in law in support of their claims.

In the first plea, the applicants argue that the Commission violated the principles of administrative diligence, reasonable delay and the rights of defence in conducting their investigation into the alleged tin stabilisers and ESBO/esters infringements. The delay in the Commission's investigation does not constitute a suspension under Article 25(6) of Regulation 1/2003¹. Furthermore, the applicants claim that the Commission violated their rights of defence by not granting access to all exculpatory and incriminatory documents in their file.

In the second plea, the applicants submit that the Commission failed to establish the existence of the infringements and the applicants' liability for their entire alleged duration. In subsidiary order, the applicants argue that the Commission failed to prove the existence of the infringement during part of the alleged period which should have a downward effect on the calculation of the fine. The Commission breached the ten year prescription rule provided for in Article 25 of Regulation 1/2003 and is time barred from imposing any fine on the applicants.

The applicants' third plea is subsidiary in nature and only relevant if the Court considers that the Commission is not time barred to act against the applicants and/or that the violations set out in the first plea should not lead to the annulment of the entire Decision. First, the Commission wrongfully attributed liability to Pure Chemicals Ltd and Akzo Nobel N.V. for the conduct of the Akcros J.V. as the latter is solely liable for its anti-competitive conduct. Second, the Commission is time barred to act against Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. for the period preceding the J.V. The applicants submit that the Commission should have allocated the liability separately to the applicants and (companies of) the Elementis group for the JV period. Furthermore, the Commission wrongly double counted the JV's turnover in the Commission's calculation of the fines.

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¹ - 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