Judgments nº T-175/05 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-175/05

In Case T-175/05,

Akzo Nobel NV, established in Arnhem (Netherlands),

Akzo Nobel Nederland BV, established in Arnhem,

Akzo Nobel AB, established in Stockholm (Sweden),

Akzo Nobel Chemicals BV, established in Amersfoort (Netherlands),

Akzo Nobel Functional Chemicals BV, established in Amersfoort,

Akzo Nobel Base Chemicals AB, established in Skoghall (Sweden),

Eka Chemicals AB, established in Bohus (Sweden),

applicants,

represented initially by C. Swaak and A. Käyhkö, and subsequently by C. Swaak and M. van der Woude, lawyers,

v

Commission of the European Communities, represented initially by P. Hellström and F. Amato, and subsequently by A. Bouquet and X. Lewis, acting as Agents,

defendant,

APPLICATION, principally, for annulment 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, reduction of the fine imposed on the applicants,

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 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 15 December 2000, Akzo Nobel Chemicals made an application under the Leniency Notice. On 25 July 2001, Akzo Nobel Chemicals and Akzo Nobel Functional Chemicals submitted a draft memorandum providing detailed information on the functioning of the cartel arrangements, which was replaced by another draft memorandum on 21 December 2001 and completed by a statement on 21 February 2003 (recitals 49 to 51 of the contested decision).

7 The Commission pursued its investigation by sending 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 As regards the Akzo Nobel Group, and more specifically its MCAA activities in the Netherlands, the Commission established that Akzo Nobel Chemicals (from 1 January 1984 until 30 June 1997) and Akzo Nobel Functional Chemicals (from 1 July 1997 until 7 May 1999) had directly participated in the cartel (recital 224 of the contested decision).

11 Taking into account the fact that, following concentrations, Akzo Nobel Chemicals had become a holding company owning a 100% shareholding in Akzo Nobel Functional Chemicals, the Commission considered that Akzo Nobel Chemicals was liable for the direct participation in the infringement of Akzo Nobel Functional Chemicals (recital 225 of the contested decision).

12 Moreover, given that Akzo Nobel Nederland controlled the entire capital of Akzo Nobel Chemicals, the Commission held Akzo Nobel Nederland liable for the illicit activities of its subsidiary Akzo Nobel Chemicals. In addition, it established that employees of Akzo Nobel Nederland had directly participated in the infringement (recital 226 of the contested decision). The Commission also considered Akzo Nobel NV to be jointly and severally liable with Akzo Nobel Nederland for the infringement, since Akzo Nobel NV fully controlled Akzo Nobel Nederland (recital 227 of the contested decision).

13 The Commission also found that there were additional elements which demonstrate, in its view, the direct implication of Akzo Nobel NV in the infringement. First, an Akzo Nobel Nederland employee was directly involved in the infringement and had to report directly to a member of the board of management of Akzo Nobel NV who had also been president of Akzo Chemicals BV (which became Akzo Nobel Chemicals) between 1991 and 1994 and who must therefore have been aware of the infringement. Secondly, on an organisational level, the Commission found that the MCAA activities of the Akzo Nobel Group were, until 1993-94, organised in a -Chemicals Division-, which reported directly to the board of management of Akzo Nobel NV. Furthermore, the MCAA activities were the responsibility of the business unit -Functional Chemicals- whose general manager was directly appointed by the board of management of Akzo Nobel NV, and as such had continued to report back to Akzo Nobel NV (recitals 227 and 228 of the contested decision).

14 As regards the Akzo Nobel Group-s MCAA activities in Sweden, the Commission held Eka Nobel AB (which became Eka Chemicals), a wholly-owned subsidiary of Nobel Industrier AB (which became Akzo Nobel AB), and its wholly-owned subsidiary Eka Nobel Skoghall AB (which became Akzo Nobel Base Chemicals) responsible for their direct participation in the infringement between 15 June 1993 and 25 February 1994 (recital 229 of the contested decision).

15 The merger with Akzo NV on 25 February 1994 meant that Nobel Industrier became a wholly-owned subsidiary of Akzo Nobel NV. Taking into account the 100% shareholding that existed at the time of the infringement between Akzo Nobel Base Chemicals, Eka Chemicals, Akzo Nobel AB and Akzo Nobel NV, the Commission held Akzo Nobel NV jointly and severally liable for the infringement committed by Eka Chemicals and Akzo Nobel Base Chemicals for the period after 25 February 1994 (recitals 230 and 232 of the contested decision).

16 According to the Commission, there were also other elements showing Akzo Nobel NV-s direct liability for the infringement committed in relation to the Swedish MCAA business. On an organisational level, responsibility for the MCAA business in Skoghall passed in 1994 to the business unit -Functional Chemicals- of Akzo Nobel Chemicals. Furthermore, an employee of Eka Chemicals who had been directly involved in the infringement became directly employed by Akzo Nobel Nederland and reported to the general manager of the business unit -Functional Chemicals-, who in turn reported back to the ultimate parent company Akzo Nobel NV (recital 233 of the contested decision).

17 The Commission then stated that, in their reply to the statement of objections, the applicants had argued that Akzo Nobel NV and Akzo Nobel AB should not be held responsible in that they had not been involved in the infringement and had not been aware of it. Amongst the other arguments put forward to that effect was also the fact that Akzo Nobel NV was a -pure- holding company and its size and structure prevented it from exercising decisive influence over its subsidiaries, that the involvement of the board of management of Akzo Nobel NV was restricted to major and broad financial and strategic decisions and that business units and business sub-units such as that competent for the MCAA sector enjoyed full responsibility for their own business conduct within the Akzo Nobel Group. The applicants also submitted that the same arguments should have also applied in relation to the holding company Akzo Nobel AB (recitals 235 to 237 of the contested decision).

18 The Commission considered that such factors did not constitute sufficient evidence to rebut the presumption that Akzo Nobel NV and Akzo Nobel AB had exercised decisive...