Judgment of the General Court (Sixth Chamber) of 27 September 2012 — BAM NBM Wegenbouw and HBG Civiel v Commission

(Case T-354/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction of competition — Guidelines on horizontal cooperation agreements — Rights of the defence — Fines — Duration of the infringement’

1. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits (Art. 81(1) and (3) EC) (see paras 23-26)

2. Competition — EU rules — Matters covered — Conduct imposed by national measures — Not included — Conditions (Arts 81 EC and 82 EC) (see para. 35)

3. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 68)

4. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements designed to restrict price competition — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133) (see paras 69-70)

5. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers — Assessment by reference to the content of the agreement and the economic context (Art. 81(1) EC) (see paras 74-75)

6. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — Irrelevant (Art. 81(1) EC) (see para. 84)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 117-119, 121-122)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 127-129, 131)

9. Competition — Fines — Amount — Determination — Division of the undertakings concerned into different categories — Conditions — Compliance with the principles of equal treatment and proportionality — Turnover of the undertakings taken into account — Discretion of the Commission (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras) (see paras 135, 138-140, 142)

10. Competition — Fines — Amount — Determination — Criteria — No need to differentiate between undertakings involved in the same infringement by reference to their overall turnover or on the product market in question (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth para.) (see para. 141)

11. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Assessment on a case-by-case basis (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 151-154)

12. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Purpose — Communication of responses to a statement of objections — Conditions — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 160-164, 166-167)

13. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see para. 165)

Re:

APPLICATION for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicants.

Operative part

The Court:

1. Dismisses the action;

2. Orders BAM NBM Wegenbouw BV and HBG Civiel BV to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — BAM NBM Wegenbouw and HBG Civiel v Commission

(Case T-354/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction of competition — Guidelines on horizontal cooperation agreements — Rights of the defence — Fines — Duration of the infringement’

1. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits (Art. 81(1) and (3) EC) (see paras 23-26)

2. Competition — EU rules — Matters covered — Conduct imposed by national measures — Not included — Conditions (Arts 81 EC and 82 EC) (see para. 35)

3. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 68)

4. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements designed to restrict price competition — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133) (see paras 69-70)

5. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers — Assessment by reference to the content of the agreement and the economic context (Art. 81(1) EC) (see paras 74-75)

6. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — Irrelevant (Art. 81(1) EC) (see para. 84)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 117-119, 121-122)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 127-129, 131)

9. Competition — Fines — Amount — Determination — Division of the undertakings concerned into different categories — Conditions — Compliance with the principles of equal treatment and proportionality — Turnover of the undertakings taken into account — Discretion of the Commission (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras) (see paras 135, 138-140, 142)

10. Competition — Fines — Amount — Determination — Criteria — No need to differentiate between undertakings involved in the same infringement by reference to their overall turnover or on the product market in question (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth para.) (see para. 141)

11. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Assessment on a case-by-case basis (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 151-154)

12. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Purpose — Communication of responses to a statement of objections — Conditions — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 160-164, 166-167)

13. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see para. 165)

Re:

APPLICATION for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicants.

Operative part

The Court:

1. Dismisses the action;