EN Official Journal of the European Union C 20/33

Action brought on 14 December 2006 — Aalberts Industries and Others v Commission

(Case T-385/06)

(2007/C 20/50)

Language of the case: English

Parties

Applicants: Aalberts Industries NV (Utrecht, Netherlands), Aquatis France (La Chapelle St. Mesmin, France), and Simplex Armaturen + Fittings GmbH & Co. KG (Argenbühl-Eisenharz, Germany) (represented by: R. Wesseling and M. van der Woude, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1, Article 2 a), Article 3;

— annul Article 2 b)(2) in as far as Aquatis and Simplex are concerned;

— or, in the alternative, reduce significantly the amount of the fine imposed on the applicants;

— order, in both cases, that the costs be paid by the Commission.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission Decision C(2006) 4180 final of 20 September 2006 in Case COMP/F-1/38.121 — Fittings, by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information.

In support of their application, the applicants invoke five pleas in law in order to demonstrate that the Commission's decision is based on manifest errors of appreciation and violations of Article 81 EC and general principles of proper administration.

Firstly, the applicants submit that Alberts did not exercise decisive influence over the commercial behaviour of its portfolio companies Aquatis and Simplex Armaturen + Fittings and that Alberts has rebutted the presumption of decisive influence. The applicant Alberts should therefore not be held liable for Aquatis and Simplex Armaturen + Fittings alleged infringements.

Secondly, the applicants contend that a) some of the documents and statements held against the applicants fall outside the litigious period in that they relate to events after 1 April 2004, and b) other elements cannot be held against the applicants because they were not part of the Statement of Objections addressed to the applicants. Even so, the applicants claim that these documents and statements do not prove, individually or cumulatively, an infringement of Article 81 EC on their side.

Thirdly, the applicants submit that the elements relied upon by the Commission do not establish to the requisite legal standard that the general cartel continued after the inspections in April 2001. Nor does the contested decision, according to the applicants, contain any justification for linking the applicant's market conduct to such an alleged scheme.

Fourthly, the applicants allege that the fine should be reduced as the Commission misapplied the fining guidelines and made errors in the calculation of the fine by an illegal setting of the starting amount as a) the alleged infringement cannot be qualified as ‘very serious’, b) the actual impact of the infringement has not been properly taken into account, and c) the size of the relevant geographic market has been wrongly identified as being the EEA.

Moreover, the applicants contend that the Commission breached Article 253 EC as the contested decision does not provide any statement of reasons for imposing an additional amount of EUR 2.04 million on the applicants Aquatis France and Simplex Amaturen + Fittings.

Fifthly, the applicants submit that the Commission violated Article 2 of Regulation 1/2003 (1) and the principle of equality of arms by shifting the burden of proof on the applicants by relying entirely on leniency statements and by refusing to use its fact-finding powers. Furthermore, the applicants contend that the Commission violated Article 11(2) of Regulation 773/2004 (2) by including in the contested decision objections which were not formulated against the applicants in the Statement of Objections.

(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) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).