Action brought on 12 December 2008 — Esso e.a./Commission

(Case T-540/08)

(2009/C 44/98)

Language of the case: English

Parties

Applicants: Esso Société Anonyme Française (Courbevoie, France), Esso Deutschland GmbH (Hamburg, Germany), ExxonMobil Petroleum and Chemical BVBA (Antwerpen, Belgium), Exxon Mobil Corp. (Irving, United States) (represented by: R. Snelders, R. Subiotto, L.-P. Rudolf, M. Piergiovanni, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicants seek the partial annulment of Commission's decision C(2008) 5476 final of 1 October 2008, in Case COMP/39.181 — Candle waxes (‘the contested decision’) and a reduction of the fines imposed on the applicants.

In support of their claims, the applicants put forward the following two main pleas in law:

By their first plea, the applicants submit that the decision errs in law by basing the calculation of Esso Société Anonyme Française's (‘Esso’) fine on a methodology that fails to reflect the undisputed fact that, before the merger between Exxon and Mobil, Exxon's paraffin wax business did not participate in the infringement. The applicants claim that under the contested decision, Esso is fined as if Exxon had participated in the infringement for seven years prior to the merger, even though the contested decision acknowledges it did not do so. As a result, the contested decision overstates the relative weight of Esso in the infringement and violates the principles of equality and proportionality, as well as Article 23(3) of Regulation (EC) No 1/2003 (1) and the 2006 Fining Guidelines (2).

By their second plea, the applicants submit that the contested decision errs in law by finding that the applicants' participation in the paraffin wax part of the infringement ended only in November 2003. In particular, the applicants contend that the contested decision fails to meet the Commission's burden of proof in establishing the duration of the applicant's participation in the paraffin wax part of the infringement. Moreover, the applicants claim that the contested decision fails to draw the proper conclusions from the undisputed fact that the applicants did not participate in — and were not informed of the outcome of — any ‘Technical Meetings’ held after 27/28 February 2003.

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

(2)  Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210 p. 2)