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Action brought on 19 February 2008 - Denki Kagaku Kogyo and Denka Chemicals v Commission

(Case T-83/08)

Language of the case: English

Parties

Applicants: Denki Kagaku Kogyo K.K. (Tokyo, Japan) and Denka Chemicals GmbH (Düsseldorf, Germany) (represented by: G. Van Gerven, T. Franchoo and D. Fessenko, lawyers)

Defendant: Commission of the European Communities

Form of order sought

To annul Articles 1, 2 and 3 of Commission Decision C(2007)5910 final of 5 December 2007 in Case COMP/F/38.629 - Chloroprene Rubber;

alternatively, to substantially reduce the fine imposed on the applicants pursuant to Article 2 of that decision;

order the Commission to pay the costs.

Pleas in law and main arguments

By means of their application the applicants seek the annulment of Commission Decision C(2007)5910 final of 5 December 2007 (Case COMP/F/38.629 - Chloroprene Rubber) relating to a proceeding under Article 81 EC and Article 53 EEA insofar as the Commission found that the applicants infringed Article 81 EC and that it imposed a fine on them requesting them to bring the alleged infringement to an end immediately.

In support of their claims, the applicants put forward six pleas in law:

On the basis of their first and second pleas, the applicants submit, first, that the Commission has made a manifest error of assessment in finding that the applicants participated in an infringement of Article 81 EC, since it has neither proved that the applicants shared a common objective with the other chloroprene producers in order to form a cartel, nor did it prove that the applicants participated in a concerted practice.

Second, the applicants claim that the Commission infringed their rights of defence and violated Article 253 EC and the principle of sound administration in that it did not provide access to Bayer's pleadings made during the in camera hearing.

On the basis of their third, fourth, fifth and sixth pleas, the applicants request the Court to reduce significantly the fine imposed by the Commission on the basis of Article 2 of the contested decision.

Namely, by their third plea, the applicants submit that the Commission has violated principles of legal certainty and non-retroactivity by calculating the fine on the basis of the 2006 Fining Guidelines instead of applying the 1998 Fining Guidelines.

By their fourth plea, the applicants contend that the Commission made a manifest error of assessment in relation to the calculation of the value of sales in determining the basic amount of the fine. Further, according to the applicants, the Commission allegedly breached the principle of proportionality in that the applicants were punished twice.

By their fifth plea, the applicants claim that the Commission made a manifest error of assessment regarding the duration of the cartel.

Finally, by the sixth plea, it is submitted that the Commission committed a manifest error of assessment and violated Article 253 EC and the principles of proportionality and equal treatment in that it failed to reduce the fine imposed on the applicants on account of mitigating circumstances.

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