Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Koninklijke BAM Groep v Commission

(Case T-355/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Duration of the infringement’

1. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Analogous requirements with regard to grounds in support of a plea — Grounds not set out in the application — General reference to documents annexed to the application — Inadmissibility — Reference to the application by another applicant — Inadmissible (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 22-27)

2. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — No obligation (Arts 81 EC and 82 EC) (see paras 37-42)

3. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — Infringement of the principles that penalties must have a sound legal basis and autonomy of the legal persons — None (Arts 81 EC and 82 EC) (see paras 44-48, 52-53)

4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — Compliance with the principle of equality and non-discrimination — Previous decision-making practice — Indicative character (Arts 81 EC and 82 EC) (see paras 49-50)

5. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 56, 68-73)

6. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Reversal of the burden of proof and infringement of the principle of the presumption of innocence — None (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 58-59)

7. Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — No obligation to impose a fine strictly proportionate to the duration of the infringement (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03) (see paras 81-82)

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 applicant.

Operative part

The Court:

1. Dismisses the action;

2. Orders Koninklijke BAM Groep NV to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Koninklijke BAM Groep v Commission

(Case T-355/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Duration of the infringement’

1. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Analogous requirements with regard to grounds in support of a plea — Grounds not set out in the application — General reference to documents annexed to the application — Inadmissibility — Reference to the application by another applicant — Inadmissible (Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 22-27)

2. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — No obligation (Arts 81 EC and 82 EC) (see paras 37-42)

3. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — Infringement of the principles that penalties must have a sound legal basis and autonomy of the legal persons — None (Arts 81 EC and 82 EC) (see paras 44-48, 52-53)

4. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Discretion of the Commission — Compliance with the principle of equality and non-discrimination — Previous decision-making practice — Indicative character (Arts 81 EC and 82 EC) (see paras 49-50)

5. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 56, 68-73)

6. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Reversal of the burden of proof and infringement of the principle of the presumption of innocence — None (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 58-59)

7. Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — No obligation to impose a fine strictly proportionate to the duration of the infringement (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03) (see paras 81-82)

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 applicant.

Operative part

The Court:

1. Dismisses the action;