Action brought on 18 July 2006 - FMC Foret v Commission

(Case T-191/06)

Language of the case: English

Parties

Applicant: FMC Foret S.A. (Sant Cugat del Vallés, Spain) (represented by: M. Seimetz, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Annulment of Commission Decision C(2006)1766 final of 3 May 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.620 - Hydrogen peroxide and perborate) in so far as it imposes a fine on the applicant;

in the alternative, reduce the fine imposed on the applicant, and

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By means of its application, the applicant, as far as it is concerned, seeks annulment of Commission Decision C(2006)1766 final of 3 May 2006 in Case COMP/F/38.620 - Hydrogen peroxide and perborate, on the basis of which the Commission found that the undertakings concerned had infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a single and continuous infringement regarding hydrogen peroxide and sodium perborate, covering the whole EEA territory, 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.

In support of its claims for a reduction of charges, the applicant mainly contends the evidentiary standard set by the Commission on its behalf and, secondly, pleads violation of its rights of defence.

The applicant, first, claims the Commission has failed to discharge the burden of proof and has not engaged in a reasonable appraisal of the evidence relating to the existence of a cartel. Thus, the applicant criticises the Commission for having relied on vague and uncorroborated allegations contained in leniency applications submitted by other undertakings, despite its Hearing Officer concerns.

The applicant further submits that both its testimony and evidence produced at various instances of the procedure in order to demonstrate the falsity of submissions against it went unchallenged, to be finally rejected by the Commission without justification.

The applicant, secondly, accuses the Commission of having wrongfully withheld evidence from it. In this respect, it was allegedly denied the right of defence with regards to access in the replies given to the Commission's Statement of Objections, while it claims to have demonstrated, in its own reply, its refusal to participate in cartel activities.

Finally, FMC Foret estimates the fine levied by the Commission against it excessive and disproportionate with regard to its turnover and given the wholly passive role it claims to have played in the alleged cartel.

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