Action brought on 17 July 2006 - L'Air Liquide v Commission

(Case T-185/06)

Language of the case: French

Parties

Applicant: L'Air Liquide SA (Paris, France) (represented by: R. Saint Esteben and M. Pittie, lawyers)

Defendant: Commission of the European Communities

Form of order sought by the applicant

The applicant claims that the Court should:

declare the action admissible;

annul Article 1(i) of Commission Decision C (2006) 1766 final of 3 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 - Hydrogen peroxide and perborate) in so far as it decided that L'Air Liquide infringed Article 81 EC and Article 53 EEA between 12 May 1995 and 31 December 1997;

consequently, annul Articles 2(f) and 4 of Commission Decision C (2006) 1766 final of 3 May 2006, as regards L'Air Liquide;

order the Commission to pay all the costs incurred by the applicant in connection with this action.

Pleas in law and main arguments

By this action, the applicant seeks the partial annulment of Commission Decision C (2006) 1766 final of 3 May 2006 in Case COMP/F/38.620 - Hydrogen peroxide and perborate, by which the Commission found that the undertakings to which the decision was addressed, including the applicant, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a number of agreements and concerted practices consisting in exchanges of information between competitors and agreements on prices and production capacities as well as monitoring the implementation of those agreements in the hydrogen peroxide and sodium perborate sector.

In support of its claims, the applicant relies on four pleas in law.

By its first plea in law, the applicant claims that the Commission made a manifest error of assessment in deciding that the matters which it put forward in order to presume L'Air Liquide jointly and severally liable because of the conduct of its subsidiary were sufficient having regard to the criteria established by the case-law and that the Commission therefore misapplied the rules governing the attribution to a parent company of the conduct of its subsidiary and thus infringed Article 81 EC.

By its second plea in law, the applicant claims that by wrongly invoking the presumption of attribution with regard to L'Air Liquide, the Commission also improperly reversed the burden of proof and thus infringed the applicant's right to a fair hearing.

By its third plea in law, the applicant argues that, even if the Court of First Instance considers that the Commission was justified in presuming the attribution to L'Air Liquide of the conduct of its subsidiary Chemoxal, the Commission failed to fulfil its obligation to state its reasons in that it did not discuss any of the evidence put forward by L'Air Liquide to demonstrate Chemoxal's independence and thus reversed that presumption of joint and several liability, which is only a rebuttable presumption.

By its fourth plea in law, the applicant maintains that the Commission has not shown sufficiently in law and fact its legitimate interest in bringing proceedings against the applicant in the present proceedings by adopting, in spite of the time-bar on its power to penalise L'Air Liquide, a decision establishing L'Air Liquide's commission of an infringement of Article 81(1) EC and Article 53 of the EEA Agreement and that in default of such a legitimate interest, the Commission therefore had no power to adopt such a decision against the applicant.

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