Action brought on 25 January 2006 - Trioplast Wittenheim v Commission

(Case T-26/06)

Language of the case: Swedish

Parties

Applicant: Trioplast Wittenheim AS (Wittenheim, France) (represented by: Tommy Pettersson, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

partially, annul Article 1(g) of the decision regarding the period during which the applicant is held responsible for the violation;

partially, annul Article 2(f) of the decision regarding the fine imposed on the applicant; in the alternative reduce the fine;

order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant appeals against the Commission's decision in Case COMP/F/38.354 - Industrial sacks (C(2005) 4634 final; hereinafter 'the contested decision') by which a fine of EUR 17.85 million is imposed on the applicant for participating in anticompetitive conduct in the market for industrial sacks in Belgium, Germany, Spain, France, Luxembourg and the Netherlands contrary to Article 81 EC.

The applicant does not dispute its participation in anticompetitive conduct up to 23 March 1999, but ceased its infringement in March 1999 when the applicant's new owner, Trioplast Industrier, became aware of the anticompetitive conduct. According to the applicant, the Commission has thus wrongly assessed the duration of the company's infringement.

Furthermore, the applicant argues, with regard to the gravity of the infringement, that, in comparison with the other companies involved, the Commission has imposed a basic amount which is too high by reference to the applicant's market share.

In addition, in support of its claim, the applicant submits that the Commission's method of calculation for determination of the fine was incorrect and that another method should have been used, by which account should have been taken of the fact that the applicant's infringement consists of three distinct periods of time, since the applicant was owned by three different owners (St. Gobain, FLS and Trioplast Industrier) over the time during which the infringement occurred. According to the applicant, the Commission's method gives the result that FLS and Trioplast Industrier's overall joint and several liability exceeds the total fine imposed on the applicant and that in practice FLS and Trioplast Industrier are held jointly and severally liable also to pay for the period when neither company owned the applicant.

Furthermore, the applicant takes the view that the Commission should have taken account of the fact that there are attenuating circumstances with regard to the applicant's infringement since the applicant was throughout a minor and passive participant in the infringement. Moreover, according to the applicant, the Commission did not take account of the 10% rule in Regulation No 1/2003, ¹ and the Commission should have granted the applicant leniency to a greater degree than was the case in the contested decision.

Finally, the applicant claims that the Commission has failed to apply the principles of legal certainty and proportionality.

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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 L 1, 4.1.2003, p. 1).