30.9.2006

EN

Official Journal of the European Union

C 237/11

(Case T-214/06)

(2006/C 237/20)

Language of the case: English

Parties

Applicant: Imperial Chemical Industries plc (ICI) (London, United Kingdom) (represented by: D. Anderson, QC, H. Rosenblatt, B. Lebrun, lawyers, W. Turner and S. Berwick, Solicitors)

Defendant: Commission of the European Communities

Form of order sought

—Annul Article 2(c) of the contested decision; or in the alternative

—amend Article 2(c) of the contested decision so as to reduce the fine imposed on ICI; and

—order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of the Commission's Decision C(2006) 2098 final of 31 May 2006 in Case COMP/F/38.645 — Methacrylates, by which the Commission found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by participating in a methacrylates cartel which consisted of discussing prices, agreeing, implementing and monitoring price agreements either in form of price increases, or at least stabilisation of existing price levels, discussing the passing on of additional service costs to customers, exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement.

Firstly, the applicant submits that the Commission did not satisfy its burden of proof under Article 2 of Council Regulation No 1/2003 for an infringement in relation to polymethyl methacrylate moulding compounds as it based its findings of the applicant's cartel activity on certain parts of immunity and leniency applications which were, to the extent that they relate to polymethyl methacrylate moulding compounds and to the applicant's period of ownership of the acrylics business, not supported by any relevant evidence and which were moreover conflicting with one another on important aspects. The applicant argues that such material does not satisfy the Commission's obligation to establish findings of an infringement with substantial and reliable evidence.

Secondly, the applicant claims that the Commission failed to reason the amount of the fine when calculating the gravity element hereof contrary to Article 253 EC.

Thirdly, the applicant alleges that the Commission committed an error of law by incorrectly treating the applicant and the company Lucite as competitors rather than consecutive participants in the alleged infringement whereby the impact on competition was counted double. This resulted in a larger aggregated fine for the applicant and Lucite merely because the business changed hands.

Fourthly, the applicant asserts that the Commission applied an incorrect standard for imposing an uplift for deterrence by relying solely on the applicant's turnover and not considering evidence of the applicant's economic capacity. Moreover, the applicant finds the deterrence uplift disproportionate with that imposed on another party in the cartel.

Fifthly, the applicant contends that the Commission improperly denied the applicant leniency and credit for cooperation outside the Leniency Notice. According to the applicant, the material it voluntarily submitted to the Commission constitutes the requisite significant added value under the Leniency Notice.

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).

Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3)