Error! Reference source not found.

Action brought on 15 December 2008 - Sasol e.a./Commission

(Case T-541/08)

Language of the case: English

Parties

Applicants: Sasol Ltd (Johannesburg, South Africa), Sasol Holding in Germany GmbH (Hamburg, Germany), Sasol Wax International AG (Hamburg, Germany), Sasol Wax GmbH (Hamburg, Germany) (represented by: W. Bosch, U. Denzel, C. von Köckritz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

to annul or substantially reduce the fine imposed on Sasol Limited, Sasol Holding in Germany GmbH, Sasol Wax International AG and Sasol Wax GmbH pursuant to Article 2 of the decision; and

to order the Commission to pay the applicants' legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

This application seeks the partial annulment, pursuant to Article 230 EC, of the Commission's decision C(2008) 5476 final, of 1 October 2008, relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/39.181 - Candle Waxes on behalf of the applicants.

In its decision, the Commission found that a number of producers of paraffin waxes and slack wax had operated a cartel from 1992 to 2005 in which they held regular meetings to discuss prices, to allocate markets and/or customers and to exchange sensitive commercial information with regard to paraffin waxes and slack wax sold to end customers in Germany.

The applicants base their application on the following pleas in law and main arguments:

According to the applicants, the Commission was wrong to hold Sasol Limited (the parent company of the Sasol group), Sasol Holding in Germany and Sasol Wax International AG liable for "the joint venture period" (1 May 1995 until 30 June 2002). The applicants submit that the Commission's assumption that Sasol Limited (via its subsidiary Sasol Holding in Germany) exercised a decisive influence over Schümann Sasol International AG amounts to a manifest error of assessment of the evidence available to the Commission.

The applicants further submit that the Commission also erred in holding Sasol Limited, Sasol Holding in Germany and Sasol Wax International AG liable for "the Sasol period" from 1 July 2002 to 28 April 2005. Further, they claim that the Commission applied the wrong legal standard and ignored the evidence brought forward by Sasol ¹demonstrating that Sasol Wax had acted autonomously on the market, thereby rebutting any presumption of parental liability.

Moreover, it is submitted that the Commission erred in not holding VARA jointly and severally liable for "the Schümann period" (from 3 September 1992 until 30 April 1995). Instead of holding VARA² liable, which exercised control over the entity participating in the infringements, the Commission attributed comprehensive liability exclusively to Sasol and compromised thus, possible means of recourse for Sasol against VARA.

The applicants submit that the Commission further committed manifest errors in determining the basic amount of the fine to be imposed to Sasol by wrongfully inflating the turnover to be taken into account and including turnover with products to which the infringement did not directly or indirectly relate within the meaning of Article 23(2)(1) of Regulation (EC) No 1/2003³. The Commission also erred in law in choosing the wrong methodology for determining the basic amount to be applied in cases where the fine decision is directed at different addresses for different periods of the infringement.

Furthermore, it is submitted, that the Commission erred in assuming a leading role of Sasol with respect to paraffin waxes and wrongfully increased the fine to be issued against Sasol by an excessive and disproportionate amount of 50 %.

The applicants further contend that the Commission wrongfully failed to apply the 10% ceiling laid down in Article 23(2) of Regulation (EC) No 1/2003 and violated the principle of individual legal responsibility in not capping the fine to be issued for this period at 10% of the turnover attributable to Mr. Schümann, who, according to the applicants ultimately controlled the company which was directly involved in the infringement.

Finally, the applicants claim that the Commission erred in not granting full immunity to Sasol with regards to certain parts of the fine for which the Commission primarily relied on evidence voluntarily provided by Sasol as part of its cooperation with the Commission.

____________

¹ - Unless otherwise specified, refers to companies of the Sasol group allegedly involved in the cartel.

² - Partner of the joint venture Schümann Sasol International AG, together with Sasol Ltd which indirectly acquired two thirds of Hans-Otto Schümann GmbH & Co KG.

³ - 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)