# C_2007020EN.01002202.xml

| 27.1.2007 | EN | Official Journal of the European Union | C 20/22 |
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27.1.2007

EN

Official Journal of the European Union

C 20/22

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Action brought on 4 December 2006 — BAM NBM Wegenbouw and HBG Civiel v Commission

(Case T-354/06)

(2007/C 20/33)

Language of the case: Dutch

Parties

Claimants: BAM NBM Wegenbouw BV and HBG Civiel BV (represented by: M.B.W. Biesheuvel and J.K. de Pree, lawyers)

Claimants:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

| — | annul the Commission decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL — C(2006) 4090 final) or at least set that decision aside to the extent to which it found that BAM NBM and HBG Civiel had breached Article 81 EC, fines were imposed on BAM NBM and HBG Civiel in that regard, BAM NBM and HBG Civiel were enjoined to put an end to that breach and to refrain in future from any of the acts or conduct referred to in Article 1, and from any acts or conduct having the same or similar objective or consequence, and to the extent to which that decision is addressed to BAM NBM and HBG Civiel; |
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annul the Commission decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL — C(2006) 4090 final) or at least set that decision aside to the extent to which it found that BAM NBM and HBG Civiel had breached Article 81 EC, fines were imposed on BAM NBM and HBG Civiel in that regard, BAM NBM and HBG Civiel were enjoined to put an end to that breach and to refrain in future from any of the acts or conduct referred to in Article 1, and from any acts or conduct having the same or similar objective or consequence, and to the extent to which that decision is addressed to BAM NBM and HBG Civiel;

| — | order the Commission to pay the costs of the proceedings. |
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order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The claimants are challenging the Commission's decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), by which a fine was imposed on the claimants for breach of Article 81 EC.

In support of their action, the claimants submit, in the first place, that the decision is at variance with Article 81 EC and with Articles 7 and 23(2) of Regulation No 1/2003, as well as being contrary to the principle laid down in Article 253 EC that measures must state the reasons on which they are based. In the opinion of the claimants, the Commission incorrectly established and interpreted the facts, and there is insufficient evidence to support the contention that the claimants infringed Article 81 EC.

In the alternative, the claimants submit that Article 2 of the decision is at variance with Article 23(3) of Regulation No 1/2003 and the guidelines on setting fines. (1). In the claimants' view, the gravity of the alleged infringement was incorrectly assessed. As a consequence, they argue, the infringement was wrongly classified as being very serious and the fine imposed was disproportionate.

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In conclusion, it is submitted, the adoption of the decision was accompanied by a breach of essential procedural requirements, inter alia in that the Commission did not provide the claimants with any opportunity to examine the responses of the oil companies and the other road construction companies to the heads of complaint raised, even though the claimants had made a request in that regard.

inter alia

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(1)  Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

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