21.2.2009

Official Journal of the European Union

C 44/61

(Case T-558/08)

(2009/C 44/104)

Language of the case: Italian

Parties

Applicant: ENI SpA (Rome, Italy) (represented by: M. Siragusa, lawyer, D. Durante, lawyer, G.C. Rizza, lawyer, S. Valentino, lawyer, L. Bellia, lawyer)

Defendant: Commission of the European Communities

Forms of order sought

—annul the Decision in whole or in part, with all the consequential implications for the level of the fine;

—in the alternative, annul or reduce the fine;

—in any event, order the Commission to pay the costs and associated expenses.

Pleas in law and main arguments

The decision contested in the present case is the same as that contested in Case T-540/08 Esso and Others v Commission.

The applicant pleads the following in support of its action:

—Infringement and misapplication of Article 81 EC in so far as Article 1 of the Decision found that ENI had participated in a continuing agreement and/or concerted practice by virtue of the presence of Mr Di Serio at the ‘technical meeting’ held on 30/31 October in Hamburg. In particular, ENI complains of errors of fact, and contests the legal consequences flowing therefrom, in that (i) the Commission stated that ENI had not, as part of its defence during the administrative procedure, maintained that Mr Di Serio ‘openly distanced himself’ from the content of the meeting in question and (ii) the Commission reported incorrectly ENI's statements concerning the discrepancies between the price increases reported in the documents originating from Sasol and from MOL. Apart from such errors, ENI submits that the Commission erred in law in finding that ENI had participated in a continuing agreement and/or concerted practice, when ENI had not participated in any ‘global plan’ and the requisite evidence of the two infringements alleged was lacking;

—Infringement and misapplication of Article 81 EC in so far as Article 1 of the Decision found that ENI had participated in an agreement and/or a concerted practice in the period from 21 February 2002 to 28 April 2005. ENI disputes, in particular, the assessment of its participation as anti-competitive in view of the absence of the requisite evidence of an agreement or concerted practice for the fixing of prices and the exchange of sensitive information.

—Infringement and misapplication of Article 81 EC and Article 23 of Regulation (EC) No 1/2003, and of the Guidelines on the method of setting fines. It is submitted in that regard that the Commission:

—determined the basic amount and the additional amount of the fine in a way that was unreasonable and contrary to the principle of equal treatment and the principle of proportionality. In fact, the percentage applied by the Commission in order to determine the basic amount (and the additional amount) of the fine was 17 % of the value of the sales, on the ground that ENI was responsible for the fixing of prices and the exchange of information, whilst the coefficient applied by the Commission to other undertakings which participated in the cartel and which also shared products and/or customers was practically identical (18 %).

—disregarded the principle of legal certainty as regards its application of a repeat offender surcharge, even though the offences committed in the 1980s by companies controlled by ENI could not be attributed to ENI and were not blamed on ENI at the time of the respective decisions. Furthermore, application of a repeat offender surcharge is unjustifiable in view of the length of time which has passed between the old offences and those covered by the Decision.

—failed to categorise as mitigating circumstances the applicant's limited participation in the agreement and the lack of implementation of the decisions made in the course of the ‘technical meetings’. ENI adds that it provided evidence of Mr Monti's belief that the meetings that he was attending were entirely legitimate in that they were organised by the European Wax Federation and, in any case, of the lack of any intention by ENI to commit an infringement; the information received from its employee did not enable it to appreciate the anti-competitive implications of those meetings.