Case T-343/06: Action brought on 1 December 2006 — Shell Petroleum and Others v Commission
Date: 2006-12-01
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), bituminous materials, fine, inter-company agreement, oil industry, road building, unlawful agreement

C 20/16

EN

Official Journal of the European Union

27.1.2007

By the present action in respect of non-contractual liability on
the part of the Community, the applicants seek compensation
for the loss which they claim to have suffered by reason of the
allegedly wrongful conduct of the EIB in the exercise of its
responsibilities as agent of the Community in the context of the
management of the loan in question. Inter alia, they allege that
the clearing of the loan was extremely slow and it was released
only in July 1997, which led them to arrange a short-term loan
with the BNDE. The applicants' failure to perform their financial
obligations led the BNDE to initiate recovery proceedings before
the national courts. By a judgment of a Moroccan national
court, the company 2K-Teint was ordered to sell its business.

the

allege

applicants

a number of

irregularities
Firstly,
committed by the BNDE in the management of the Community
funds, of which they informed the EIB, seeking its response. The
applicants claim that the EIB did not react to the information
sent to it. They argue that the EIB was required to act since the
BNDE acted if not on instruction as its agent, at least as its
apparent agent, the EIB retaining an important role in the deci-
sions on the loans in question.

Furthermore, the applicants claim that the EIB should accept
liability not only for the errors of the BNDE arising in connec-
tion with the legal relationship between them, but also the
consequences of its own deficiencies and failures. They allege
that the EIB did not efficiently monitor or check the use of the
funds from the time of their receipt by the Moroccan bodies,
which consequently meant that the allegedly fraudulent conduct
of the BNDE was encouraged or even supported. They submit
that the EIB was guilty of failures, negligence and omissions, to
a serious extent, in its duties of prudence, diligence and care in
the management of Community funds.

The applicants submit that the losses which they claim to have
suffered are directly related to the omissions and failures of the
EIB. They therefore seek an order that it compensate them for
those losses.

Kingdom), Shell Nederland Verkoopmaatschappij BV (Capelle
aan den IJssel, The Netherlands) (represented by: O.W. Brouwer,
W. Knibbeler, S. Verschuur, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Shell Petroleum NV and The Shell Transport and Trading
Company Ltd request the Court:

— To annul, in full, Commission's Decision of 13 September
2006 relating to a proceeding under Article 81 EC (Case
COMP/F/38.456 — Bitumen — NL, hereinafter,
'the deci-
sion') insofar as it is addressed to Shell Petroleum NV and
The Shell Transport and Trading Company Ltd; or in the
alternative

— to annul, in part, the decision, insofar as it finds that Shell
Petroleum NV and The Shell Transport
and Trading
Company Ltd infringed Article 81 EC between 1 April 1994
and 19 February 1996 and to reduce the fine imposed upon
them; and

— in any event, to reduce the fine imposed on Shell Petroleum
NV and The Shell Transport and Trading Company Ltd
pursuant to the decision;

— to order the defendant to pay the costs of the proceedings,
including costs incurred by Shell Petroleum NV and The
Shell Transport and Trading Company Ltd associated with
payment in whole or in part of the fine or constituting a
bank guarantee;

— take any other measures that the Court considers to be

appropriate.

Action brought on 1 December 2006 — Shell Petroleum
and Others v Commission

Shell Nederland Verkoopmaatschappij BV requests the Court:

(Case T-343/06)

(2007/C 20/23)

— to annul, in part, the decision insofar as it finds that Shell
Nederland Verkoopmaatschappij BV infringed Article 81 EC
between 1 April 1994 and 19 February 1996 and to reduce
the fine imposed upon it; and

Language of the case: English

— in any event, to reduce the fine imposed on Shell Nederland

Verkoopmaatschappij BV pursuant to the decision;

Parties

— to order the defendant to pay the costs of the proceedings,
including costs incurred by Shell Verkoopmaatschappij BV
associated with payment in whole or in part of the fine or
constituting a bank guarantee;

Applicants: Shell Petroleum NV (The Hague, The Netherlands),
The Shell Transport and Trading Company Ltd (London, United

— take any other measures that the Court considers to be

appropriate.

27.1.2007

EN

Official Journal of the European Union

C 20/17

Pleas in law and main arguments

The applicants argue that the following elements of the decision
are based on errors of law and errors of assessment:

(a) the finding that Shell Verkoopmaatschappij BV was an insti-

gator and leader of the cartel;

(b) the attribution of liability for the infringement to The Shell
Transport and Trading Company Ltd and Shell Petroleum
NV;

(c) the increase in the fine for repeated infringement;

(d) the calculation of the starting amount for Shell Nederland

Verkoopmaatschappij BV;

(e) the duration of the infringement.

Action brought on 4 December 2006 — TOTAL v
Commission

(Case T-344/06)

(2007/C 20/24)

Language of the case: French

Parties

Applicant: TOTAL SA (Courbevoie, France) (represented by: A.
Gosset-Grainville, L. Godefroid and A. Lamothe, avocats)

Defendant: Commission of the European Communities

Form of order sought

— annul, pursuant to Article 230 EC, the Commission Deci-
sion of 13 September 2006 in Case COMP/F/38.456 —
Bitumen — Netherlands) in so far as it concerns TOTAL SA
in Articles 1(m), 2(m), 3 and 4;

— alternatively, annul Articles 1(m) and 2(m) and reduce
accordingly the amount of the fine imposed on TOTAL SA
by the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Deci-
sion C(2006) 4090 final of 13 September 2006 relating to a
proceeding under Article 81 EC (Case COMP/F/38.456 —
Bitumen — Netherlands) concerning a body of agreements and
concerted practices designed to fix, for sales and purchases of
road bitumen in the Netherlands, the gross price, a uniform
rebate on the gross price for participating road builders and a

smaller maximum rebate on the gross price for other road
builders. Alternatively,
least a
substantial reduction in the amount of the fine imposed on it
by the contested decision.

it seeks the annulment or at

The application contains five pleas.

First, the applicant states that the Commission infringed the
rules relating to the accountability of a parent company for the
practices of its subsidiary. It claims that the Commission acted
wrongly when it attributed to the applicant the infringement at
issue which was committed by its subsidiary TOTAL Nederland
NV and, therefore, held the applicant jointly and severally liable
for the infringements. The applicant considers that the Commis-
sion committed an error of law in finding that the fact that the
applicant held 100 % of the capital of its subsidiary was suffi-
cient for it to have decisive influence over it. The applicant also
alleges that the Commission committed an error of
law in
failing to undertake a serious examination of all the evidence
showing which entities within the TOTAL Group might have
been responsible for the practices at issue.

Secondly, the applicant accuses the Commission of infringing
the rules of evidence in failing to prove that the applicant exer-
its
cised a decisive influence over the commercial policy of
subsidiary, TOTAL Nederland NV, on the relevant market, and
in failing to take account of information which TOTAL SA
submitted to enable it
to delineate the undertaking in the
TOTAL Group which was concerned.

Also, the applicant considers that the Commission infringed the
principle that it must not act in an arbitrary manner, when it
stated in the contested decision that it had a discretion when
deciding which entities within an undertaking it considered to
be responsible for an infringement.

Finally, the applicant states that the Commission infringed the
principle of good administration in failing to send requests for
information to the applicant during the investigation stage.

least reduction of

Alternatively, the applicant relies on two pleas in support of its
application for annulment or at
the fine
imposed on it in the contested decision. It considers that the
Commission infringed the rules applicable to the setting of
fines. It states that,
if the acts should have been imputed to
TOTAL SA, the date taken by the Commission to fix the starting
point for the applicants' participation in the infringement is not
correct and the Commission has failed to give sufficient grounds
for its decision on this point. The applicant claims moreover
that the Commission failed to respect the principle of propor-
tionality when it applied a multiplier for deterrence of 1.5,
based on the worldwide turnover of TOTAL Group for the
period of
that no ground for
complaint was attributed to the applicant for a part of the said
period.

reference, despite the fact