21.11.2009

EN

Official Journal of the European Union

C 282/54

(Case T-370/09)

2009/C 282/102

Language of the case: French

Parties

Applicant: GDF Suez (Paris, France) (represented by: J.-P. Gunther and C. Breuvart, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul, entirely or in part, Article 1 of the Decision insofar as it makes GDF Suez liable for having infringed the provisions of Article 81(1) EC by participating in an agreement and in concerted practices in the natural gas sector from at least 1 January 1980 until 30 September 2005, with regard to the infringement in Germany, and from 10 August 2000 at least until 30 September 2005, with regard to the infringement in France and, as a consequence, in addition annul Article 3 of the Decision insofar as it requires GDF Suez to cease the infringements referred to in Article 1 or with an identical or similar object or effect;

—in the alternative, annul or substantially reduce the amount of the fine imposed on GDF Suez under Article 2 of the Decision;

—order the Commission to pay the costs.

Pleas in law and main arguments

By its present application, GDF Suez seeks, principally, the annulment, total or partial, of Decision C(2009) 5355 final adopted by the European Commission on 8 July 2009 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.401 — E.ON/GDF), concerning an agreement and concerted practices in the natural gas sector. In the alternative, the applicant seeks the annulment of or, failing that, a reduction in the fine imposed on it by that decision.

In support of its principal application for annulment of the Decision, the applicant raises four pleas in law, alleging:

—infringement of Article 81 EC, of the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas before August 2000, because of:

—the lack of anticompetitive subject-matter and effect of the 1975 side letters before August 2000;

—the lack of effect on intra-Community trade before August 2000; and

—the lack of any proof of the alleged infringement between January 1980 and February 1999;

—infringement of Article 81 EC, the rules on collection of evidence and the duty to give reasons with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2000, because of:

—the lack of a single and continuous infringement between 1 January 1980 and 30 September 2005 and, as a consequence, the time-barring of the 1975 side letters;

—the lack of concurrence of wills between the parties seeking application of the 1975 side letters after August 2000;

—a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas; and

—the failure to assess the autonomous conduct of GDF Suez in Germany and of E.ON/E.ON Ruhrgas in France;

—a manifest lack of evidence with regard to the existence of an agreement and/or a concerted practice seeking to restrict the use in France by E.ON/E.ON Ruhrgas of gas transported by the MEGAL gas pipeline, because of:

—the lack of any infringement on the French market caused by the letter from ‘Direktion G’;

—a manifestly incorrect assessment of the meetings and exchanges between GDF Suez and E.ON/E.ON Ruhrgas regarding France;

—the exception based on the legal monopoly of GDF Suez on importation and supply of gas in France before the liberalisation of the gas market in January 2003;

—errors in fact and in law in the application of Article 81 EC with regard to the existence of an agreement and/or a concerted practice between GDF Suez and E.ON/E.ON Ruhrgas after August 2004.

In support of its application, in the alternative, for annulment of the fine, the application puts forward a single plea alleging breach of the principles of equal treatment, of proportionality and of non-retroactivity.

In support of its application, very much in the alternative, for a reduction in the fine, the applicant puts forward six pleas in law, alleging:

—that the alleged infringement concerning the gas markets in France has not been proved sufficiently in law and that the contested decision is vitiated by a lack of reasoning on that point;

—breach of the principles of equal treatment and proportionality in that an identical fine has been imposed on GDF Suez and on E.ON/E.ON Ruhrgas;

—incorrect assessment of the duration of the infringement;

—incorrect assessment of the seriousness of the infringement;

—incorrect assessment of the need to apply a load of 15 % to GDF Suez; and

—incorrect assessment of the attenuating circumstances.