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Action brought on 9 April 2009 - Parker ITR and Parker-Hannifin v Commission

(Case T-146/09)

Language of the case: English

Parties

Applicants: Parker ITR Srl (Veniano, Italy) and Parker-Hannifin Corp. (Mayfield Heights, Unites States) (represented by: B. Amory, F. Marchini Càmia and F. Amato, lawyers)

Defendant: Commission of the European Communities

Form of order sought

annul the Decision insofar as it holds Parker ITR liable from 1 April 1986 until 9 June 2006, and Parker Hannifin liable from 31 January 2002 until 9 June 2006;

substantially reduce the fine imposed on the applicants;

order the Commission to pay its own costs and those of the applicants.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2009) 428 Final of 28 January 2009 relating to a proceeding under Article 81 EC and Article 53 EEA in Case COMP/39406 - Marine Hoses insofar as it holds them liable for participation in a single and continuous infringement in the marine hose sector in the EEA, which consisted of allocating tenders, fixing prices, fixing quotas, fixing sales conditions, geographic market sharing, and the exchange of sensitive information on prices, sales volumes and procurement tenders. Furthermore, they seek the reduction of the fine imposed on the applicants.

The applicants put forward nine pleas in law in support of its claims.

Under the first three pleas which concern issues of attribution of liability, the applicants submit as follows:

First, they claim that, in holding Parker OTR liable for the infringement committed before 1 January 2002 by legal entities which still exist, carry out economic activities, and belong to a different undertaking, the contested decision infringed the principle of personal liability, misused its powers in order to circumvent the rules on prescription, infringed the principle of non-discrimination and failed to state reasons.

Second, the applicants argue that the contested decision infringed the principle of personal responsibility in holding them liable for the illegal conduct of Parker ITR's employee given that: (i) the employee engaged in the cartel activities for his own personal benefit; (ii) towards achieving his illegal gains the employee operated Parker ITR's Oil & Gas Business Unit independently of the applicants; (iii) Parker ITR suffered damage as a result of the employee's illegal conduct.

Third, they submit that the contested decision erred in holding Parker Hannifin liable for the period between 31 January 2002 and 9 June 2006, because any presumption of Parker Hannifin's decisive influence over the marine oil and gas hose activities of its wholly owned subsidiary Parker ITR has been amply rebutted by the Applicants and non of the arguments or documents cited in the decision undermines such rebuttal or constitutes evidence of Parker Hannifin's decisive influence over Parker ITR during such period.

Under the remaining six pleas, which concern the amount of the fine, the applicants submit as follows:

Fourth, they contend that the contested decision manifestly erred in defining the infringement from 1 April 1986 to 13 May 1997 and the infringement from 11 June 1999 to 2 May 2007 as either a single and continuous infringement or as a repeated infringement, within the meaning of Article 25, paragraph 2, second sentence, of Regulation 1/2003¹. Consequently, in the applicants' view, the Commission's power to impose a fine for the infringement from 1 April 1986 to 13 May 1997 is time barred.

Fifth, the applicants claim that the decision erred in considering Parker ITR as a leader of the cartel from 11 June 1999 to 30 September 2001.

Sixth, they submit that the contested decision violated the principle of personal responsibility and failed to state reasons with regard to the increase of the fine imposed on Parker Hannifin for Parker ITR's alleged role of leader.

Seventh, the applicants argue that the decision infringed the principle of legitimate expectation by taking into account for the purposes of calculating the "aggregate sales within the EEA", within the meaning of paragraph 18 of the Commission Guidelines on Fines², the sales of goods invoiced to companies located in the EEA, but not delivered within the EEA.

Eighth, they claim that in relaying on Parker Hannifin's consolidated turnover for the purposes of calculating the 10% ceiling for the portion of the fine for which Parker ITR was held solely liable, the contested decision misinterpreted Article 23 of Regulation 1/2003, infringed the principle of personal responsibility and failed to state reasons.

Ninth, they submit that the decision violated the principle of legitimate expectation and the duty to state reasons in refusing to apply to the applicants a reduction of the fine for cooperation.

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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

² - Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, OJ 2006 C 210, p. 2