Judgments nº T-161/05 of Court of First Instance of the European Communities, September 30, 2009

• Resolution Date: September 30, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-161/05

In Case T-161/05,

Hoechst GmbH, formerly Hoechst AG, established in Frankfurt am Main (Germany), represented initially by M. Klusmann and U. Itzen, and subsequently by M. Klusmann, U. Itzen and S. Thomas, lawyers,

applicant,

v

Commission of the European Communities, represented initially by A. Bouquet, F. Amato and M. Schneider, and subsequently by M. Bouquet and M. Kellerbauer, acting as Agents,

defendant,

APPLICATION, principally, for annulment of Articles 2 and 3 of Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 - MCAA) and, in the alternative, application for reduction of the fine imposed on the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),

composed of N.J. Forwood, President, D. -váby (Rapporteur) and L. Truchot, Judges,

Registrar: K. Poche-, Administrator,

having regard to the written procedure and further to the hearing on 18 June 2008,

gives the following

Judgment

Background to the dispute and the contested decision

1 In Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 - MCAA) (-the contested decision-), the Commission of the European Communities found that the parent company Akzo Nobel NV and its subsidiaries Akzo Nobel Nederland BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB, Eka Chemicals AB and Akzo Nobel AB (together, -the Akzo Nobel Group-), Elf Aquitaine SA and its subsidiary Arkema SA (formerly Elf Atochem SA and subsequently Atofina SA), Clariant AG and its subsidiary Clariant GmbH, and the applicant, Hoechst AG, had infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) by taking part in a cartel in the market for monochloroacetic acid (Article 1 of the contested decision).

2 Monochloroacetic acid (-MCAA-) is a strong organic acid used as a chemical intermediate, in particular, in the manufacture of detergents, adhesives, textile auxiliaries and thickeners used in foods, pharmaceuticals and cosmetics (recitals 3 to 6 of the contested decision).

3 The Commission began its investigation of the MCAA market after Clariant GmbH informed it, by letter of 6 December 1999, of the existence of a cartel with regard to that market and submitted an application to it for favourable treatment under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; -the Leniency Notice-) (recital 43 of the contested decision).

4 Subsequently, Clariant GmbH provided the Commission with documents and information relating to the cartel (recitals 44 and 45 of the contested decision).

5 On 14 and 15 March 2000, the Commission carried out on-the-spot inspections at the premises of Elf Atochem and at those of Akzo Nobel Chemicals and Akzo Nobel Functional Chemicals (recital 46 of the contested decision).

6 On 28 May 2003, the Commission addressed a request for information to Hoechst on the arrangements and its involvement therein, to which it received a reply on 10 July 2003. An additional request was sent by the Commission on 19 November 2003, to which Hoechst replied on 5 and 15 December 2003 (recitals 53 and 55 of the contested decision).

7 As part of its investigation, the Commission sent several requests for information to some of the participants in the cartel and their competitors (recitals 52 to 55 of the contested decision).

8 On 7 and 8 April 2004, the Commission sent a statement of objections to the following 12 addressees: 7 companies in the Akzo Nobel Group (namely the parent company, Akzo Nobel NV, and its subsidiaries Akzo Nobel Nederland, Akzo Nobel Functional Chemicals, Akzo Nobel Chemicals, Akzo Nobel AB, Eka Chemicals and Akzo Nobel Base Chemicals), and also to Clariant GmbH and Clariant AG (together, -Clariant-), Hoechst and Elf Aquitaine and its subsidiary Atofina. All the addressees replied.

9 In the light of the evidence available to it, the Commission found that the aforementioned undertakings had participated in a cartel to maintain market shares through a volume and customer allocation system, that they exchanged price information and reviewed the actual sales volumes, as well as price information, at regular multilateral meetings so as to monitor the implementation of the arrangements (recitals 84 to 90 of the contested decision).

10 In the case of Hoechst, the Commission found that it had directly participated in the infringement from 1 January 1984 until 30 June 1997, that is until it sold its MCAA business to Clariant AG (recitals 246 and 272 of the contested decision).

11 The Commission rejected Hoechst-s argument in its reply to the statement of objections that it could not be held liable for the alleged infringements as liability for those infringements had been transferred in its entirety to Clariant on the basis of explicit contractual arrangements. The Commission considered, first, that Hoechst had participated directly in the infringement and had to be held responsible for the period in which it was involved prior to the transfer of the MCAA business and, second, that Hoechst-s liability under competition law for its infringing behaviour was not affected by contractual arrangements existing between the parties or the particular structure of the transaction (recital 248 of the contested decision).

12 The amount of the fines was fixed by the Commission in accordance with its guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; -the Guidelines-) and the Leniency Notice.

13 In recitals 276 and 277 of the contested decision, the Commission set out the general criteria in the light of which it fixed the amount of the fines. It pointed out that it was required to have regard to all relevant circumstances and particularly the gravity and duration of the infringement which are the criteria explicitly referred to in Article 15(2) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962), p. 87) and Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and assess on an individual basis the role played by each undertaking party to the infringement. It stated that, in doing so, it took account, when fixing the amount of the fines, of any aggravating or attenuating circumstances and as appropriate, the Leniency Notice.

14 With regard to the gravity of the infringement, the Commission considered that, having regard to its nature, which consisted of market sharing and price fixing, its intentional character, its actual impact on the MCAA market and the fact that it covered the whole of the common market and, following its creation, the whole of the EEA, the undertakings concerned by the contested decision had committed a very serious infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement (recitals 280, 281 and 288 of the contested decision).

15 When setting the starting amount of the fines, the Commission stated that in the circumstances of the present case, which involved several undertakings, it was necessary to take account of the specific weight, and therefore the real impact on competition, of each undertaking-s offending conduct (recital 290 of the contested decision).

16 For that purpose, the Commission considered it appropriate in the present case to use the EEA market shares of the undertakings that participated in the infringement as a basis for comparison to determine their respective weight. The comparison was based on shares of the EEA market for the product at issue in the last full calendar year of the infringement (1998). For Hoechst, the year taken into consideration was however 1996 (recitals 291 and 292 of the contested decision).

17 The Akzo Nobel Group, with an estimated EEA market share of 44%, was considered to be the largest producer and was therefore placed in the first category of the undertakings concerned. Hoechst and Clariant, which were considered to be the second largest MCAA producers, with market shares of 28% and 34% respectively, were placed in a second category. Atofina, with an estimated market share of 17%, was placed in the third category (recitals 293 to 295 of the contested decision).

18 The starting amounts of the fines were determined as follows: EUR 30 million for the Akzo Nobel Group, EUR 21 million for Hoechst and Clariant, EUR 12 million for Atofina/Elf Aquitaine and EUR 1.33 million for Eka Nobel (the words -basic amounts- appear by error in recitals 296 and 297 of the contested decision).

19 The Commission also increased the starting amount of the fines for each undertaking according to the length of time in which they participated in the infringement, since it considered that the starting amounts of their fines should be increased by 10% for each full year of infringement and by 5% for any period of six months or more but less than a year. It therefore increased by 150% the starting amount of the fine imposed on the Akzo Nobel Group and of that imposed on Atofina/Elf Aquitaine, that imposed on Hoechst by 135% and that imposed on Clariant by 15% (recital 302 of the contested decision).

20 After aggravating circumstances were taken into account, Hoechst and Atofina received an increase of 50% in the basic amount of the fine to be imposed on them for repeated infringement, since both those undertakings had been subject to previous Commission decisions establishing their participation in cartels (recitals 308 and 314 of the contested decision).

21 To this end, the Commission noted that Hoechst had been an addressee of...