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Action brought on 1 March 2010 - BASF v Commission

(Case T-105/10)

Language of the case: English

Parties

Applicant: BASF SE (Ludwigshafen am Rhein, Germany) (represented by: F. Montag, J. Blockx and T. Wilson, lawyers)

Defendant: European Commission

Form of order sought

annul the contested decision;

order the Commission in the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2009)10568 of 18 December 2009 in Case No. COMP/M.5355 - BASF/Ciba rejecting the proposal of 6 November 2009 to approve Roquette Frères as purchaser of Divestment Business SDA and rejecting the request to modify the commitments subject to which the Commission declared, by its decision C(2009) 1961 of 12 March 2009, the operation by which the applicant acquires control of the whole CIBA Holding AG ("Ciba") compatible with the common market.

The applicant puts forward the following pleas in law in support of its application for annulment.

It claims, in the first place, that by rejecting the proposed purchaser the defendant violated Article 6(2) of the Regulation No 139/2004¹, paragraphs 418 and 419 of the decision approving BASF's acquisition of Ciba, clause 4(a)(b), 13, 14 and 34 and Schedule B of the commitments attached thereto and paragraphs 31, 48, 73 and 102 of the remedies notice².

In particular, the applicant argues that the defendant has based its rejection of the proposed purchaser on inaccurate facts and has committed a manifest error of assessment with regard to the incentive for Roquette Frères to maintain and develop the Divestment Business. Furthermore, the applicant argues that the defendant has relied on inaccurate facts and committed a manifest error of assessment with regard to the applicant's request to modify the commitments according to the review clause of the commitments.

Secondly, the applicant claims that the contested decision breaches the principle of proportionality since, in the applicant's opinion, the rejection of its proposal was not necessary to achieve the purpose of the commitments to avoid the creation or strengthening of a dominant position.

Thirdly, the applicant claims that the defendant violated the principle of sound administration and Article 296 TFEU by failing to hear the applicant before taking the contested decision and by failing to state adequate reasons for the contested decision.

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¹ - Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ 2004 L 24, p. 1

² - Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, OJ 2004 L 133, p. 1