EN Official Journal of the European Union C 20/27

Action brought on 5 December 2006 — Ballast Nedam Infra v Commission

(Case T-362/06)

(2007/C 20/41)

Language of the case: Dutch

Parties

Claimant: Ballast Nedam Infra B.V. (represented by: A.R. Bosman and J.M.M. van de Hel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2006) 4090 final of 13 September 2006, notified to the claimant on 25 September 2006, relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL), to the extent to which that decision is addressed to the claimant;

— in the alternative, set aside Article 2 of the decision, to the extent to which it is addressed to the claimant, or at least reduce the fine imposed on it by the said Article 2;

— set aside in part Article 1 of the decision, in so far as it relates to the duration of the infringement up to October 2000, and consequently reduce the fine imposed in Article 2 of the decision, in so far as the claimant is concerned;

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

Pleas in law and main arguments

The claimant is 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 claimant for breach of Article 81 EC.

In support of its action, the claimant invokes, in the first place, a breach of Article 81 EC and of Article 23(2) of Regulation No 1/2003. According to the claimant, the Commission has failed to adduce any evidence of a single ongoing breach of Article 81 EC. The claimant submits that the Commission has adduced no evidence that the bitumen suppliers and the major road construction companies jointly fixed the gross price for bitumen and that the major road construction companies had an interest in concluding those agreements. The claimant argues that the Commission also erred in classifying as a breach of Article 81 EC the agreement on the standard rebate and the desire on the part of the road construction companies to secure for themselves better conditions than small road construction companies with a less extensive purchase volume.

Second, the claimant invokes a breach of Article 81 EC and of Article 23(2) of Regulation No 1/2003 and the Commission's guidelines on setting fines (1). The claimant argues that the Commission incorrectly assessed the gravity of the breach.

Third, the claimant alleges a breach of Article 81 EC in that the Commission assumed, on grounds that are incorrect in both factual and legal terms, that the claimant exercised a determining influence on the market conduct of Ballast Nedam Grond en Wegen B.V.

The claimant concludes by invoking a breach of Article 27(1) of Regulation No 1/2003 and of the rights of the defence by reason of the fact that the Commission deprived the claimant of the opportunity to challenge a number of new elements in the decision concerning the claimant's involvement in the alleged infringement during the period from 21 June 1996 to 1 October 2000 inclusive.

(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).