Action brought on 4 December 2006 — Kuwait Petroleum Corp. and others v Commission

(Case T-370/06)

(2007/C 20/45)

Language of the case: English

Parties

Applicants: Kuwait Petroleum Corp. (Shuwaikh, Kuwait), Kuwait Petroleum International Ltd (Woking, United Kingdom), and Kuwait Petroleum (Nederland) BV (Rotterdam, The Netherlands) (represented by: D.W. Hull, Dr. G. M. Berrisch, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By a decision adopted on 13 September 2006 (the ‘contested decision’), the Commission imposed on Kuwait Petroleum Corp. (‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait Petroleum (Nederland) BV (‘KPN’), the applicants, jointly and severally, a fine of EUR 16.632 million for infringing Article 81 EC by fixing prices in the Dutch bitumen market. Each of the applicants hereby seeks the annulment of the contested decision or, in the alternative, a reduction of the fine on the following grounds:

In their first plea, the applicants claim that the Commission committed a manifest error of law and fact because it applied a wrong legal standard in holding KPC and KPI liable for acts of KPN and because it failed to provide adequate evidence under the correct legal standard. Precisely, it is claimed that the Commission, in the contested decision, found that both KPC and KPI are liable for the involvement of KPN's managers in the Dutch bitumen cartel on the grounds that KPN is a wholly-owned subsidiary of KPC and that each of KPC and KPI exercise broad supervisory powers over KPN. The applicants submit that a parent company may not be held liable on the basis of shareholdings and broad supervisory powers alone, and that the Commission must establish that the parent company exercised sufficient control over the subsidiary's conduct on the market affected by the infringement that it would be reasonable to assume that the subsidiary did not act autonomously with respect to the infringement.

The applicants further submit, in their second plea, that the contested decision should be annulled or, in the alternative, the fine reduced, because the Commission allegedly erred as a matter of law in fining the applicants in contravention to the 2002 Leniency Notice (1), which provides that, when a leniency applicant provides evidence relating to facts that were previously unproven and those facts have a direct bearing on the gravity or duration of the cartel, the Commission may not use such facts against the leniency applicant.

Finally, in their third plea, the applicants submit that the Commission committed a manifest error of assessment in determining the percentage of the reduction in the fine pursuant to the 2002 Leniency Notice, and accordingly argue that the fine should be reduced by the maximum amount of 50 %.

(1)  Notice on Immunity from Fines and Reduction of Fines in cartel cases, OJ (2002) C 45, p. 3.