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

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 argum...

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