Judgments nº T-99/04 of Court of First Instance of the European Communities, July 08, 2008

• Resolution Date: July 08, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-99/04

In Case T-99/04,

AC-Treuhand AG, established in Zurich (Switzerland), represented by M. Karl, C. Steinle and J. Drolshammer, lawyers,

applicant,

v

Commission of the European Communities, represented by A. Bouquet, acting as Agent, and by A. Böhlke, lawyer,

defendant,

ACTION for annulment of Commission Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 - Organic peroxides) (OJ 2005 L 110, p. 44),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),

composed of M. Jaeger, President, J. Azizi and O. Czúcz, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 12 September 2007,

gives the following

Judgment

Background to the dispute

1 Commission Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 - Organic peroxides) (OJ 2005 L 110, p. 44; -the contested decision-) concerns a cartel formed and implemented on the European market for organic peroxides - chemicals used in the plastics and rubber industry - by the AKZO group (-AKZO-), Atofina SA, successor to Atochem (-Atochem/Atofina-), and Peroxid Chemie GmbH & Co. KG, a company controlled by Laporte plc, now Degussa UK Holdings Ltd (-PC/Degussa-), inter alia.

2 It is apparent from the contested decision that the cartel was founded in 1971 by a written agreement (-the 1971 agreement-), amended in 1975 (-the 1975 agreement-), between three producers of organic peroxides, namely AKZO, Luperox GmbH, which later became Atochem/Atofina, and PC/Degussa (-the cartel-). The aim of that cartel was, inter alia, to preserve the market shares of those producers and to coordinate their price increases. Meetings were held regularly to ensure the proper functioning of the cartel. Under the cartel, Fides Trust AG (-Fides-), and subsequently, from 1993, the applicant, AC-Treuhand AG, were entrusted, on the basis of agency agreements with AKZO, Atochem/Atofina and PC/Degussa, with, inter alia, storing certain secret documents relating to the cartel, such as the 1971 agreement, on their premises; collecting and treating certain information concerning the commercial activity of the three organic peroxide producers; communicating to them the data thus treated; and with completing logistical and clerical-administrative tasks associated with the organisation of meetings between those producers, particularly in Zurich (Switzerland), such as the reservation of rooms and the reimbursement of their representatives- travel costs. However, certain factual elements relating to the applicant-s activities in relation to the cartel are contested between the parties.

3 The Commission had initiated an investigation into the cartel following a meeting on 7 April 2000 with AKZO-s representatives, who informed it of an infringement of the Community competition rules in order to gain immunity under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; -the Leniency Notice-). Subsequently, Atochem/Atofina and PC/Degussa also decided to cooperate with the Commission and provided it with additional information (recitals 56 to 63 in the preamble to the contested decision).

4 On 3 February 2003 the Commission sent a request for information to the applicant. In that request, the Commission essentially stated that it was in the process of investigating a putative infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by the European organic peroxide producers. It also requested the applicant to provide an organigram of its undertaking, to describe its activity and its development, including its takeover of the activity of Fides, its activity as the -secretariat- for the organic peroxide producers and its turnover for 1991 to 2001. The applicant responded to that request for information by letter of 5 March 2003 (recital 73 of the contested decision).

5 On 20 March 2003 a meeting was held between the representatives of the applicant and the Commission-s staff in charge of the case-file, at the end of which the latter stated that the applicant was also concerned by the proceedings initiated by the Commission, without however specifying the offences alleged against it.

6 On 27 March 2003 the Commission initiated the formal examination procedure and adopted a statement of objections which was subsequently served on the applicant, among others. The applicant submitted its observations on the objections on 16 June 2003 and attended the hearing on 26 June 2003. The Commission finally adopted the contested decision on 10 December 2003, which it served on the applicant on 9 January 2004, and by which it imposed a fine on it of EUR 1 000 (recital 454 and Article 2(e) of the contested decision).

7 The adoption and the notification of the contested decision were accompanied by a press release in which the Commission stated, inter alia, that, as a consultancy firm, the applicant had played, from the end of 1993, an essential role in the cartel by organising meetings and covering up evidence of the infringement. Therefore, the Commission concluded that the applicant had also infringed the competition rules and stated:

-The sanction taken [against the applicant] is of a limited amount due to the novelty of the policy followed in that area. The message is clear however: those who organise or facilitate cartels, thus not only their members, must henceforth fear being caught and having very heavy sanctions imposed on them-.

Procedure and forms of order sought by the parties

8 By application lodged at the Registry at the Court of First Instance on 16 March 2004, the applicant brought the present action.

9 By letter lodged at the Court Registry on 30 November 2005, the applicant requested, as regards the publication of the judgment of the Court of First Instance bringing the proceedings to an end, confidential treatment of the entire agreement which it had concluded with Fides, which forms part of the annex to the application, and of the name of Fides and of the applicant-s former employee, Mr S.

10 By letter lodged at the Court Registry on 1 February 2006, the applicant stated that it wished to maintain its request for confidentiality and, in the alternative, requested that confidential treatment be granted to certain passages, rendered unreadable, of the text of the agreement cited in paragraph 9 above, of which it produced a non-confidential version at the Court-s request.

11 Pursuant to Article 14 of the Rules of Procedure of the Court of First Instance and on the proposal of the Third Chamber, the Court decided, after hearing the parties in accordance with Article 51 of the Rules of Procedure, to refer the case to a Chamber sitting in extended composition.

12 On hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber, Extended Composition) decided to open the oral procedure.

13 At the hearing, which took place on 12 September 2007, the parties presented oral argument and answered the oral questions put by the Court.

14 The oral procedure was closed at the end of the hearing on 12 September 2007. Pursuant to Article 32 of the Rules of Procedure, since a member of the Chamber was prevented from taking part in the judicial deliberations, the most junior judge within the meaning of Article 6 of the Rules of Procedure accordingly abstained from taking part in the deliberations and the Court-s deliberations were conducted by the three judges whose signatures the present judgment bears.

15 At the hearing, the applicant withdrew its request for confidential treatment in so far as it concerned mention of the name of Fides; formal note of this was taken in the minutes of the hearing.

16 The applicant claims that the Court should:

- annul the contested decision in so far as it concerns the applicant;

- order the Commission to pay the costs.

17 The Commission contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

Law

A - Preliminary observations

18 The Court of First Instance considers it necessary to address, first, the applicant-s request for confidential treatment since it did not withdraw that request at the hearing (see paragraphs 9, 10 and 15 above).

19 As regards the name of the applicant-s former employee, the Court took account of that request in accordance with its practice regarding publication in relation to the identity of natural persons in other cases (see, to that effect, Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraphs 31 and 33). However, the Court considers that the existence as such of the agreement between Fides and the applicant has, in any event, lost its potentially confidential character in the light of the identification of that agreement in the extract from the - publicly accessible - companies register of the canton of Zurich regarding the applicant-s establishment, as produced in the annex to the application and in recitals 20 and 91 of the version of the contested decision published provisionally on the internet site of the Directorate General for competition of the Commission (see, to that effect, the order of the President of the Third Chamber, Extended Composition, of the Court of First Instance in Case T-289/03 BUPA and Others v Commission [2005] ECR II-741, paragraphs 34 and 35), no objection to that publication having been made by the applicant in accordance with the procedure laid down in Article 9 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of hearing officers in certain competition proceedings (OJ 2001 L 162, p. 21).

20 Consequently, the request for confidential treatment must be rejected in so far as it concerns the existence of the agreement between Fides and the...