Action brought on 15 December 2006 - Tomkins v Commission

(Case T-382/06)

Language of the case: English

Parties

Applicant: Tomkins plc (London, United Kingdom) (represented by: T. Soames and S. Jordan, solicitors)

Defendant: Commission of the European Communities

Form of order sought

Annul Article 1 of Commission Decision of 20 September 2006 (Case COMP/F-1/38.121 - Fittings - C(2006) 4180 final) relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement, insofar as it relates to the applicant; or in the alternative

amend Article 2(h) of the contested decision so as to reduce the fine imposed on the applicant and on Pegler; and

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks annulment of Article 1 of Commission Decision C(2006) 4180 final of 20 September 2006 in Case COMP/F-1/38.121 - Fittings, by which the Commission found the applicant, jointly and severally liable with Pegler Ltd for an infringement of Article 81 EC in the Copper Fittings industry from 31 December 1988 to 22 March 2001 and ordered it to pay a fine of EUR 5.25 million. In the alternative, the applicant seeks to amend Article 2(h) of the contested decision.

The applicant contends that the Commission infringed Article 230 EC on the following grounds:

First, the Commission has allegedly breached the rules governing the responsibility of parent companies for the acts of their subsidiaries by holding the applicant jointly and severally liable for the conduct of Pegler, one of the applicant's former subsidiaries. In that sense, the applicant claims that the Commission made a manifest error in law by incorrectly stating the legal basis for parent company liability and incorrectly applying the test for shareholder liability in a factual setting where it should not apply. Moreover, the applicant submits that the Commission erred in relying on the applicant's alleged scope of business in the construction sector as relevant to the question of whether the applicant was purely a financial investor delegating operational responsibility to Pegler at the local business unit level. Further still, the Commission's elimination of its own burden to establish shareholder liability and the raising of the burden for the shareholder in this case infringes the principle of presumption of innocence.

Second, the applicant alleges that the Commission committed a manifest error of fact and has failed to prove to the requisite legal standard any decisive influence by the applicant on the commercial conduct of Pegler. According to the applicant's submissions the facts do not establish the applicant's liability either under (a) the correct law that was either not applied or misapplied by the Commission, or (b) the incorrect law as stated by the Commission.

Third, the applicant contends that the Commission has failed to state adequately why the evidence submitted by the applicant was insufficient to rebut the presumption of decisive influence.

Fourth, the applicant maintains that the Commission applied the wrong standard in imposing an uplift for deterrence, and failed properly to assess the evidential basis for calculating the length of Pegler's participation in the cartel, thus arriving at an unfounded and inaccurate determination of the duration of the infringement.

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