14.4.2007

Official Journal of the European Union

C 82/45

(Case T-39/07)

(2007/C 82/97)

Language of the case: Italian

Parties

Applicant: ENI SpA (Rome, Italy) (represented by: Prof. G.M. Roberti and I Perego, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul that part of the contested decision which holds the applicant responsible for the conduct that is being penalised;

—annul or reduce the fine imposed under Article 2 of the decision;

—order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the same decision that is contested in Case T-38/07 Shell Petroleum and Others v Commission.

ENI considers the contested decision to be unlawful in that it imputes liability to it solely on the ground of its role as the head of the group which controls the entire share capital of the company that has been held liable for the alleged collusion complained of. In those circumstances, the applicant submits that:

—the Commission has based its decision essentially on an a presumption of strict liability connected to ownership structure that is not borne out and is contrary to the principles laid down by practice and in Community case-law relating to the application of Article 81 EC in connection with groups of companies. Such an approach also breaches the basic principle that liability and penalties must be specific to the offender and the principle of legality, being the result of clear errors of assessment of the factual material provided by ENI to rebut the Commission's presumption. In this connection, the Commission failed properly to state the reasons for its assessment, in breach of the requirement laid down in Article 253 of the EC Treaty.

—moreover, the contested decision does not even take into account the principle of the limited liability of capital companies to be found in company law that is common to the laws of all the Member States, to international legal practice and to Community law itself, an approach which, at the same time, appears to be inconsistent with the criteria laid down for the implementation of Community competition rules in cases involving succession/transfer. The contested decision similarly fails totally to provide reasons in respect of those issues.

ENI therefore seeks the annulment of or, at least, a considerable reduction in the fine imposed, given that the Commission:

—has failed to assess the impact on the market concerned of the offending conduct allegedly established;

—improperly established the aggravating circumstance of repeated infringement, referring, moreover, to decisions under Article 81 EC dating back many years which did not in any way concern the applicant, even by virtue of its role as head of a group.

—moreover, by erroneously excluding Syndial from the addressees of the contested decision, contrary to the criteria laid down by case-law, infringed Article 23 of Regulation No 1/2003, failing to take account of that company's turnover in that connection.