Action brought on 17 July 2006 - Solvay v Commission
(Case T-186/06)
Language of the case: English
Parties
Applicant: Solvay S.A. (Brussels, Belgium) (represented by: O.W. Brouwer, D. Mes, lawyers, M. O'Regan and A. Villette, Solicitors)
Defendant: Commission of the European Communities
Form of order sought
Annul, in full or in part, Articles 1, 2 and 3 of the European Commission's Decision of 3 May 2006 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F/38.620 - Hydrogen peroxide and perborate) insofar as it relates to the applicant, in particular insofar as it finds that the applicant infringed Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement (a) between 31 January 1994 and August 1997 and (b) between 18 May and 31 December 2000;
annul or substantially reduce the fines imposed on the applicant and on Solvay Solexis SpA pursuant to the decision;
order the defendant to pay the costs of the proceedings, including costs incurred by the applicant associated with payment in whole or part of the fine or constituting a bank guarantee;
take any other measures that the Court considers to be appropriate.
Pleas in law and main arguments
By the contested decision the Commission found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a hydrogen peroxide and sodium perborate cartel, which consisted mainly of exchanges between competitors of information on prices and sales volumes, agreements on prices, agreements on reduction of production capacity in the EEA and monitoring of the anti-competitive arrangements.
The applicant contends that the Commission was entitled to find that Solvay had infringed Article 81 EC between August 1997 and 18 May 2000, but that the Commission committed infringements of law and manifest errors of assessment in the application of Article 81 EC finding that Solvay committed an infringement, on the one hand, between 31 January 1994 and August 1997 and, on the other, between 18 May and 31 December 2000. These infringements and manifest errors of assessment relate in particular to:
a) the misapplication of the concepts of 'agreement', 'concerted practice' and 'single and continuous infringement';
b) failing to prove to the requisite standard the applicant's participation in a cartel other than in the periods admitted by the applicant;
c) presuming continuing anti-competitive effects after 18 May 2000; and
d) failing to analyse properly the evidence in its file in relation to the above periods.
The applicant further submits that the Commission, when calculating the fine, has made several infringements of law and manifest errors of assessment in applying its 2002 Leniency Notice
1 and Regulation No 1/2003
2, including in relation to:
a) the timing of applications for a reduction of fines and/or the provision of significant added value there under;
b) the assessment of the added value of the evidence provided by the applicant; and
c) the level of the reduction of the fine accorded to the applicant, which according to Solvay manifestly failed to take account of the extent of the evidential value contributed by it, as well as its substantial and continuous cooperation.
Furthermore, the applicant alleges that the fine was excessive and disproportionate and that the Commission failed to provide any, alternatively any sufficient, reasons to justify its calculation of the fine.
More over, the applicant submits that the Commission unlawfully imposed a fine upon the applicant's subsidiary, Solvay Solexis SpA.
Finally, the applicant claims that the Commission breached essential procedural requirements and rights of defence by not giving full access to the file and by not giving access to non-confidential versions of replies to statements of objections of other parties in the Commission procedure.
____________1 - Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)2 - 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).