Notice for the OJ

 

    

Action brought on 8 February 2002 by Daiichi Pharmaceutical Co. Ltd. against the Commission of the European Communities

    (Case T-26/02)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8th February 2002 by Daiichi Pharmaceutical Co. Ltd., represented by Mr Jacques Buhart and Mr Pierre-M. Louis of Coudert Brothers LLP, Brussels (Belgium).

The applicant claims that the Court should:

- annul Article 3 (f) of the Commission Decision of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No. COMP/E-1/37,512 - Vitamins);

- alternatively, substantially decrease the fine levied on the applicant; and

- order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant is a Japanese pharmaceutical company whose subsidiary company manufactured D-pantolactone and D-Calcium Pantothenate (Vitamin B5) and Pyridoxine (Vitamin B6) during the relevant period. In the contested Decision, the Commission imposed fines upon the applicant and seven other companies for participating in eight distinct secret market-sharing and price-fixing cartels affecting vitamin products.

The applicant does not dispute the Commission's finding that the applicant had infringed Article (1) of the EC Treaty and Article 53(1) of the EEA Agreement by participating in agreements affecting the Community and EEA markets for Vitamins B5 and B6. Furthermore, the applicant does not contest the facts found by the Commission. The applicant seeks, however, the annulment of Article 3(f) of the Decision imposing a fine of EUR 23.4 million upon the applicant or, alternatively, a substantial reduction of that fine.

The applicant submits inter alia that the Commission committed a manifest error of judgement, erroneously applied the law to the facts and infringed the Fining Guidelines

- by failing to place the applicant in a third category, behind both Hoffmann-La Roche and BASF, in setting the starting point for the amount of the fine relating to the gravity of the infringement, or, alternatively and in violation of the principle of equal treatment, in failing to place the applicant in the second category with BASF;

- by failing to treat the applicant's less-than-full implementation of the Vitamin B5 cartel as an attenuating circumstance warranting a substantial reduction of the basic amount of the fine;

- by failing to grant to the applicant total immunity or a very substantial reduction of 75% to 100% of the fine for the Vitamin B5 infringement pursuant to Section B of the Leniency Note on the basis of the applicant's cooperation during the procedure or, alternatively, a lesser reduction of the fine pursuant to Section C or Section D of the Leniency Notice.

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