Case T-347/06: Action brought on 4 December 2006 — Nynäs Petroleum and Nynas Belgium v Commission
Date: 2006-12-04
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

27.1.2007

EN

Official Journal of the European Union

C 20/19

In support of its claims, the applicant alleges:

— that the Commission failed to take account of the judgment
of the French Conseil d'Etat of 6 November 2002. It claims
in this regard that, by its judgment of 6 November 2002 the
French Conseil d'Etat had noted the irregularity of the proce-
dure by which the French interministerial decision of 27
June 2001 had been adopted and had ordered its annul-
ment. The Commission has therefore given its own opinion
on the justification for an act that, according to the law of
the Member State which adopted that act, would appear to
be invalid.
is unlawful,
It follows that the opinion itself
given that it is intended to confirm an act already held to be
invalid by the competent authorities and which is no longer
of any effect in the legal system;

— incorrect appraisal as to substance. According to the appli-
cant, the Commission's appraisal of the substance would
appear
the machines
produced by IMS were incorrectly assessed from the point
of view of technical compliance with the rules applicable;

since features of

to be vitiated,

— with regard to compensation for damage,

IMS claims to
have suffered and still to suffer, for the reasons set out here,
wrongful damage of a non-contractual nature caused it by
the Commission, which failed to take into consideration the
declaration that the French decision was null and void and
made an incorrect appraisal of IMS's products.

Action brought on 4 December 2006 — Nynäs Petroleum
and Nynas Belgium v Commission

(Case T-347/06)

(2007/C 20/27)

Language of the case: English

Parties

Applicants: AB Nynäs Petroleum (Stockholm, Sweden) and
Nynas Belgium AB (Zaventem, Belgium)
(represented by: A.
Howard, Barrister, and M. Dean, Solicitor)

Defendant: Commission of the European Communities

— annul Article 2 of the decision in so far as it imposes a fine
of EUR 13.5 million on Nynas, or in the alternative, reduce
that fine as appropriate; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek partial annulment of Commission Decision
C(2006) 4090 final of 13 September 2006 in Case COMP/F/
38.456 — Bitumen — NL, by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC by regularly and collectively fixing, for sales and
purchases of road pavement 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.

In support of their application, the applicants submit, first of all,
that the Commission committed errors of law and assessment
in holding Nynäs Petroleum jointly and severally liable for the
infringement committed by Nynas Belgium as Nynas Belgium
operated as an autonomous legal entity that determined its
commercial policy
from Nynäs Petroleum.
According to the applicants, the Commission has not demon-
strated that Nynäs Petroleum had the power to direct the opera-
tions of Nynas Belgium to the point of depriving it of any real
independence in determining its own course of action on the
market.

independently

Secondly, the applicants allege that the Commission disregarded
the provisions of the Leniency Notice (1) contrary to the princi-
ples of
legitimate expectations and equal treatment, when it
dismissed the value of the information voluntarily provided by
the applicants under Part B of the Leniency Notice and refused
to grant the applicants a reduction for cooperation. The appli-
cants claim that the Commission among others committed the
following errors of law and assessment:

— the Commission wrongly concluded that the information
provided by the applicants did not of its nature strengthen
the Commission's ability to prove the infringement, since
other participants in the infringement had already admitted
the infringement and other replies to the request for infor-
mation had already confirmed the existence of a system of
meetings;

— the Commission wrongly concluded that the information
provided by the applicants did not constitute significant
added value.

Form of order sought

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002 C 45, p. 3)

— Annul Article 1 of the decision in so far as it imputes joint

and several liability to AB Nynas;