Notice for the OJ
Action brought on 18 December 2003 by Hoechst AG against the Commission of the European Communities
(Case T-410/03)
(Language of the case: German)
An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 18 December 2003 by Hoechst AG, Frankfurt am Main (Germany), represented by M. Klusmann and V. Turner, lawyers.
The applicant claims that the Court should:
- annul the contested decision in so far as it concerns the applicant;
- in the alternative, make an appropriate reduction in the amount of the fine imposed on the applicant in the contested decision;
- order the defendant to pay the costs.
Pleas in law and main arguments
By Decision K(2003) 3426 of 1 October 2003 the Commission found that the applicant and four other undertakings had infringed Article 81(1) EC by virtue of their participation in a complex, single and continuing agreement and in concerted practices in the sorbate sector, through which they agreed inter alia target prices. A fine of EUR 99 million was imposed on the applicant.
The applicant challenges the decision and claims that the Commission infringed the principle of good administration by unlawfully giving preferential treatment to another undertaking in the administrative procedure. Both undertakings cooperated with the Commission at the end of 1998 and the applicant claims that the other undertaking has been given an unlawful advantage.
The applicant complains that there were irregularities in the conduct of the procedure at that time and also that despite its requests the Commission has refused to grant it access to Commission documents. The Commission has already allowed access to some internal documents in the context of general inspection of documents and it can therefore no longer rely on general confidentiality of internal documents connected therewith. Furthermore, a complete version of the decision, or a version which is sufficiently comprehensible, has not been supplied to the applicant, information in the first part of the decision having been blanked out without justification, thus making it impossible inter alia to comprehend how the fines were calculated.
Moreover, the applicant claims that there were errors of assessment and of law in connection with the fixing of the fine. It complains that the basic amount is disproportionate because it has not been treated in the same way as other participants in the procedure. It also complains that the Commission wrongly inferred that its actions had detrimental consequences and that 'senior management' participated in the cartel. The applicant submits that the basic amounts of the fine calculated according to groups are wrong because, in particular, the additional cartel activities of the Japanese manufacturers have not been taken into account. The applicant also challenges, on the merits, the further additional fine of 30% for its alleged position as 'ringleader' and also the further addition of 50% for recidivism. With regard to appraisal of its cooperation, the applicant complains that the Commission wrongly failed to classify it as the first cooperating undertaking.
Moreover, the applicant complains that a previous penalty imposed in the United States in regard to the same matter was not taken into account and relies in that regard on the principle of ne bis in idem which also applies in relationships with non-member countries. Although that principle does not preclude further proceedings, it requires prior penalties to be taken into account.
Finally, the applicant complains that owing to the Commission's lack of activity in the first stage of the procedure, the length of the procedure was unreasonable within the meaning of Article 6(1) ECHR and complains that the order to desist is unlawful because the relevant business has been sold in the meantime.
____________