Action brought on 28 January 2010 - GEA Group v Commission

(Case T-45/10)

Language of the case: German

Parties

Applicant: GEA Group (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

Defendant: European Commission

Form of order sought

Annul Article 1(2) of the Decision, in so far as it finds that the applicant infringed Article 101(1) TFEU (formerly Article 81(1) EC) and Article 53(1) of the EEA Agreement;

annul Article 2 of the decision, in so far as it imposes a fine on the applicant;

in the alternative, shorten the duration of the infringement allegedly committed by the applicant pursuant to Article 1(2) and reduce the fine imposed on the applicant in Article 2 of the decision;

order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant has brought an action against Commission Decision C (2009) 8682 of 11 November 2009 in Case COMP/C38.589 - Heat stabilisers. In the contested decision, the Commission imposed fines on the applicant and other undertakings in respect of infringements of Article 81 EC and - since 1 January 1994 - of Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a series of agreements and/or concerted practices in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied. The applicant is jointly and severally liable together with two other undertakings that are legal successors of those undertakings that are alleged to have participated in anti-competitive arrangements.

In support of its action, the applicant has submitted three pleas in law.

By way of the first plea in law, the applicant submits that the Commission wrongly assumed that the legal predecessor of the applicant had decisive influence over the relevant undertakings. The applicant submits in this respect that the contested decision is based on wrong findings of fact and a wrong application of the legal provisions regarding imputation, especially the conditions for the assumption that there was decisive influence.

By way of a second plea in law, the applicant submits that the Commission's right to impose a fine on the applicants pursuant to Article 25(1) and (5) of Regulation (EC) No 1/2003¹ had become time-barred. In this respect, the applicant explains that the Commission has not shown that the relevant undertakings committed an infringement after 1996/1997 and in 1999 and 2000, respectively. Further, the applicant submits that the fact that the Commission suspended the procedure because of the proceedings in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission did not lead to a suspension of the period of limitations in respect of the applicant.

Finally, in the third plea, the applicant criticises an infringement of its rights of defence. In this respect, the applicant claims that the Commission suspended the investigation for no reason for more than four years, with the result that the investigation had been running for approximately five years before the applicant was informed and approximately six years before a statement of objections was notified to the applicant. In addition, the Commission failed to investigate the persons involved in the offence and the business unit concerned in order to make a comprehensive finding of the facts of the case. According to the applicant the Commission's failure deprived it of the opportunity to secure exculpatory evidence and to properly defend its case.

____________

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)