Action brought on 15 December 2008 - H & R ChemPharm v Commission

(Case T-551/08)

Language of the case: German

Parties

Applicant: H & R ChemPharm GmbH (Salzbergen, Germany) (represented by: M. Klusmann and S. Thomas, lawyers)

Defendant: Commission of the European Communities

Form of order sought

-    annul the contested decision in so far as it relates to the applicant;

-    in the alternative, reduce as appropriate the amount of the fine imposed on the applicant in the contested decision;

-    order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision C (2008) 5476 final of 1 October 2008 in Case COMP/39.181 - Candle Waxes, in which the defendant found that certain undertakings, including the applicant, had participated in a continuing agreement and/or concerted practice in the paraffin waxes sector, contrary to Article 81(1) EC and Article 53 of the Agreement on the European Economic Area.

The applicant relies on four pleas in law in support of its action.

In its first plea, the applicant alleges infringement of its rights of defence inasmuch as the contested decision does not differentiate between it and other companies which were fined separately, but instead refers uniformly to 'H & R/Tudapetrol'. The applicant asserts that it does not understand which specific acts contributing to the offence are to be attributed to it. Its rights of defence are thereby infringed in so far as the grounds of complaint and the decision must indicate unambiguously which specific acts lead to the allegation of a breach of law and the resulting imposition of a fine.

In the alternative, the applicant argues in its second plea in law that there is no evidence that it acted unlawfully. The Commission, on the basis of its broad-brush appraisal of the evidence in relation to all of the undertakings to which the decision was addressed, failed to have regard for the fact that there was no evidence of an infringement on the part of the applicant. The applicant submits that the Commission did not carry out a sufficiently discriminating and individual appraisal of the evidence which could, and would necessarily, have shown that the evidence adduced was insufficient to establish that the applicant had committed an offence.

In the further alternative, the applicant claims in its third plea in law that, in the calculation of the fine, the initial amount was erroneously set too high.

In the further alternative, the applicant claims in its fourth plea in law that the principle of proportionality and the prohibition of discrimination were breached by reason of the erroneous calculation of the fine. Specifically, the applicant asserts that an error of assessment was made when fixing at 17% the percentage of turnover for the severity of the offence and the entry fee and that the level of the fine was disproportionate as a result of the disproportionate account taken of the size of the undertaking. Finally, the applicant points out that the 2006 Guidelines on fines were unlawfully applied retroactively in the present case, which predates those Guidelines.

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