EN

Official Journal of the European Union

C 212/43

(Case T-195/06)

(2006/C 212/74)

Language of the case: Italian

Parties

Applicant: Solvay Solexis SpA (represented by: Tommaso Salonico and Gian Luca Zampa, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul the decision in part, in particular Articles 1, 2 and 3 thereof, and reduce the penalty imposed on Solexis accordingly;

—order the defendant to pay the costs of the proceedings, including the applicant's costs with regard to the payment in whole or in part of the penalty or in respect of provision of the bank guarantee.

Pleas in law and main arguments

The contested decision in this case is the same as that in Case T-185/06 Le Air Liquide v Commission. That decision laid down that Solexis is jointly and severally liable with Edison SpA for a fine of EUR 25 619 million. The applicant's liability derives exclusively from the conduct of the company Ausimont SA which, at the time of the facts, was subject to sole control by Edison.

In support of its claims, the applicant argues that the penalty imposed on it by the decision which is the subject-matter of the action should be regarded as wrongly set, owing to:

—incorrect assessment of the duration of the infringement, which took place from May/September 1997 to May 2000 and not, as regards the applicant itself, from May 1995 to December 2000;

—incorrect assessment concerning the main effect on and application to the market of the infringement and of the passive role played by the applicant, in the period from May 1995 to May/September 1997 inclusive;

—non-participation of the applicant in the agreement on the limitation of capacity. When imposing the penalty the Commission disregarded the fact that Ausimont never joined, either in 1997 or subsequently, the agreement on the restriction/limitation of production capacity. The infringement attributable to Ausimont is therefore less serious than that committed by other undertakings on account of its lesser effect on competition, and also in accordance with the fundamental principles of equal treatment, fairness and proportionality;

—failure to take into account its cooperation. In fact the defendant did not grant the applicant any benefit with regard to its cooperation, or as a result of its participation in the leniency programme, or in respect of the mitigating circumstance provided for by the Guidelines.

Finally, the applicant claims infringement of the principle of proportionality.