Action brought on 19 July 2006 - Total and Elf Aquitaine v Commission

(Case T-190/06)

Language of the case: French

Parties

Applicants: Total SA and Elf Aquitaine (Courbevoie, France) (represented by: E. Morgan de Rivery, lawyer, and A. Noël-Baron, lawyer)

Defendant: Commission of the European Communities

Form of order sought

annul Articles 1(o) and (p), 2(i), 3 and 4 of Commission Decision C(2006) 1766 final of 3 May 2006;

in the alternative, amend Article 2(i) of Commission Decision C(2006) 1766 final of 3 May 2006, in so far as it imposes a fine of EUR 78.663 million on Arkema SA, of which Total SA is held jointly and severally liable for EUR 42 million, and ELF Aquitaine SA for EUR 65.1 million, and reduce the amount of the fine in question to an appropriate level;

in any event, order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicants seek 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, which included the applicants, infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of agreements and concerted practices consisting of the exchange of information between competitors and agreements on prices and production capacities and also of supervision of the implementation of those agreements in the hydrogen peroxide and sodium perborate sector. In the alternative, they seek the reduction of the amount of the fine imposed on their subsidiary for which they are held jointly and severally liable.

The main claim is based on ten pleas in law.

Firstly, the applicants submit that the contested decision breaches their rights to a defence and also the presumption of innocence.

Secondly, they contend that the contested decision, in so far as it finds them liable for the disputed breach committed by their subsidiary, breaches the obligation to state reasons, firstly because the reasoning of the Commission, which the applicants consider to be partially contradictory, is insufficiently developed, having regard to the novelty of the position adopted in regard to them, and, secondly, because the Commission, by refusing to respond, ignored the specific factors put forward by the applicants to justify their lack of involvement in the management of the subsidiary.

The applicants also consider that the contested decision breaches the unitary nature of the concept of an undertaking within the meaning of Article 81 EC and Article 23(2) of Regulation 1/2003, ¹ and also the rules which govern whether breaches committed by a subsidiary can be imputed to its parent company. As regards that plea, the applicants claim that the Commission has disregarded the restrictive guidelines of the Community Courts regarding its power to hold a parent company liable for breaches committed by its subsidiary. It also adopted an interpretation of the case-law relating to imputability which was incorrect and went against its decision-making practice. According to the applicants, the Commission also breached the principle of independence of legal persons.

The applicants consider in addition that the Commission made manifest errors of assessment by incorrectly applying to Total the presumption of imputability and by considering, when assessing the repetition of the breaches, that Total's subsidiary fined by the contested decision had always belonged to it.

Furthermore, the applicants contend that the Commission infringed several essential principles that are recognised by the Member States and which form part of Community law, such as the principle of non-discrimination, the principle of liability for one's own acts, the principle of the individual nature of penalties and the principle of legality.

The applicants also submit that the contested decision compromises the principles of good administration and legal certainty.

The applicants finally consider that the Commission infringes the rules governing the calculation of fines such as the principle of equal treatment, in so far as it does not apply a reduction of 25% to the starting amount of the fine imposed on the applicants whereas it did apply it to another undertaking to which the contested decision was addressed. According to the applicants, the contested decision also exceeds the limits placed on the Commission's power regarding the taking into account of the deterrent effect, in breach of the principle of the presumption of innocence and the principle of legal certainty.

Lastly, the applicants claim that the contested decision constitutes a misuse of powers in that it holds them liable for the breach committed by their subsidiary and penalises them jointly and severally with it.

In the alternative, the applicants consider that the fine imposed upon their subsidiary, and for which they are held jointly and severally liable, should be reduced to a fair level. They seek to obtain a reduction of 25% in the starting amount of the fine imposed upon them and also to rely on mitigating circumstances in that they were ordered to pay large fines almost simultaneously in two similar cases.

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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 2003 L 1, p. 1