Judgments nº T-175/05 of Court of First Instance of the European Communities, of September 30, 2009

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 ...

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