22.4.2006

EN

Official Journal of the European Union

C 96/18

(Case T-51/06)

(2006/C 96/34)

Language of the case: Dutch

Parties

Applicant: Fardem Packaging B.V. (Edam, Netherlands) (represented by: F.J. Leeflang, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—set aside in whole or in part the decision addressed to Fardem;

—reduce the fine imposed on Fardem;

—order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant is challenging the Commission decision of 30 November 2005 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/F/38.354 — Industrial bags), in which the applicant was held to be jointly and severally liable in respect of its participation in a cartel and ordered to pay a fine.

In support of its action the applicant alleges breach of Article 81 EC, Article 253 EC, and Article 23(2) of Regulation No 1/2003, as well as infringement of the principle of care, the principle that reasons must be given, and the principle of equal treatment.

The applicant first submits that the Commission has misunderstood the applicant's defence with regard to its conduct both before and after 1997. While the applicant does not deny that it took part in the cartel, it points out that, prior to 1997, it was entirely dependent on its then parent company. After 1997, however, it was independent and its intentions altered gradually but fundamentally.

The applicant goes on to submit that the Commission proceeds on the basis of an erroneous appraisal of the facts with regard to the applicant's participation in the ‘Valveplast’, ‘Benelux’ and ‘Teppema’ groups, as also with regard to its participation in the ‘Belgium’ and ‘Block Bags’ groups. The applicant claims that the Commission accepted a number of conclusions which were negligent and inaccurate in regard to several forms of conduct. The applicant also points out that the Commission failed to take any account of the fact that the ‘Belgium’ and ‘Block Bags’ groups were terminated prior to 1997.

Furthermore, the applicant alleges that the Commission erred in its appraisal of the facts relating to the determination of geographical markets. The applicant points out in this regard that it has no turnover in Spain and only a minimal turnover in France.

The applicant also criticises the Commission on the ground that it did not apply the leniency notice to the applicant and that it failed to treat certain facts indicated by the applicant as amounting to mitigating circumstances.

With regard to the determination of the basic amount of the fine, the applicant disputes that the individual market shares were determined on the basis of turnover achieved instead of tonnage, the application of differentiated treatment in categories on the basis of market share and the expression of that differentiation in categories, as well as the application of the basic amount of the fine to each category as determined.

The applicant concludes that the Commission was wrong to decide that the applicant and Kendrion N.V. constituted an economic unit, on which ground Kendrion was unjustly fined as a result of a breach committed by the applicant.