Case T-354/06: Action brought on 4 December 2006 — BAM NBM Wegenbouw and HBG Civiel 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

C 20/22

EN

Official Journal of the European Union

27.1.2007

Form of order sought

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

— annul Articles 1(d) and 2(d) of the decision in so far as the

liability of Dura Vermeer Infra is concerned; and

— order the Commission to pay the costs of the 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 alleges a breach of Article
81 EC by reason of the fact that the Commission failed to prove
that the claimant had participated in the fixing of the gross
prices for bitumen or that it had itself any interest whatever in
such fixing. The Commission thereby wrongly concluded that
the bitumen suppliers and the road construction companies had
participated in one and the same breach of Article 81 EC.

The claimant submits further that the Commission has failed to
demonstrate that the claimant participated in collusion between
a group of bitumen suppliers and a group of major road
construction companies for the purpose of fixing, on a regular
basis, a smaller
road
construction companies.

rebate on the gross price for other

Further, the claimant alleges, the Commission infringed Article
81 EC and the guidelines for the setting of fines in that it failed
to prove (i) that the claimant had participated in a very serious
breach of Article 81 EC and (ii) that the claimant's involvement
in the alleged breach had lasted from 1 April 1994 to 15 April
2002. Consequently, in the view of the claimant, the Commis-
sion took an excessively long period into account
for the
purpose of calculating the fine imposed on it.

In conclusion, the claimant alleges a breach of Article 253 EC
and an infringement of essential procedural requirements.

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 application, the claimant invokes the same
pleas in law and arguments as does the claimant in Case T-351/
06 Dura Vermeer Groep NV v Commission.

Action brought on 5 December 2006 — Vermeer Infra-
structuur v Commission

(Case T-353/06)

(2007/C 20/32)

Language of the case: Dutch

Parties

Claimant: Vermeer Infrastructuur BV (represented by: M.M. Slot-
boom, lawyer)

Defendant: Commission of the European Communities

Action brought on 4 December 2006 — BAM NBM Wegen-
bouw and HBG Civiel v Commission

Form of order sought

— principally, annul Decision C(2006) 4090 final of

the
Commission of the European Communities of 13 September
2006 relating to a proceeding under Article 81 EC (Case No
COMP/38.456 — Bitumen — NL); or

— in the alternative, annul Articles 1, 2(d) and 3 of the deci-
sion in so far as (i) those provisions find that Vermeer parti-
cipated in the fixing of the gross price for the sale and
purchase in the Netherlands of bitumen for use in road
construction, and (ii) a fine and an injunction were imposed
in that regard;

Parties

(Case T-354/06)

(2007/C 20/33)

Language of the case: Dutch

— in the further alternative, annul Article 2(d) of that decision

in so far as that provision imposed a fine on Vermeer;

Claimants: BAM NBM Wegenbouw BV and HBG Civiel BV (repre-
sented by: M.B.W. Biesheuvel and J.K. de Pree, lawyers)

— in the yet further alternative, reduce the fine imposed on

Vermeer by Article 2(d) of the decision; and

Defendant: Commission of the European Communities

27.1.2007

EN

Official Journal of the European Union

C 20/23

Form of order sought

Action brought on 5 December 2006 — Koninklijke BAM
Groep v Commission

— annul

the Commission decision of 13 September 2006
relating to a proceeding under Article 81 EC (Case No
COMP/38.456 — Bitumen — NL — C(2006) 4090 final) or
at least set that decision aside to the extent to which it
found that BAM NBM and HBG Civiel had breached Article
81 EC, fines were imposed on BAM NBM and HBG Civiel in
that regard, BAM NBM and HBG Civiel were enjoined to put
an end to that breach and to refrain in future from any of
the acts or conduct referred to in Article 1, and from any
acts or conduct having the same or similar objective or
consequence, and to the extent to which that decision is
addressed to BAM NBM and HBG Civiel;

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

Parties

(Case T-355/06)

(2007/C 20/34)

Language of the case: Dutch

Pleas in law and main arguments

Claimant: Koninklijke BAM Groep NV (represented by: M.B.W.
Biesheuvel and J.K. de Pree, lawyers)

The claimants are 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 claimants for breach of Article 81 EC.

In support of their action, the claimants submit,
in the first
place, that the decision is at variance with Article 81 EC and
with Articles 7 and 23(2) of Regulation No 1/2003, as well as
being contrary to the principle laid down in Article 253 EC that
measures must state the reasons on which they are based. In the
opinion of the claimants, the Commission incorrectly estab-
lished and interpreted the facts, and there is insufficient evidence
to support the contention that the claimants infringed Article
81 EC.

In the alternative, the claimants submit that Article 2 of the
decision is at variance with Article 23(3) of Regulation No
1/2003 and the guidelines on setting fines. (1). In the claimants'
view, the gravity of the alleged infringement was incorrectly
assessed. As a consequence, they argue, the infringement was
wrongly classified as being very serious and the fine imposed
was disproportionate.

In conclusion, it is submitted, the adoption of the decision was
accompanied by a breach of essential procedural requirements,
inter alia in that the Commission did not provide the claimants
with any opportunity to examine the responses of
the oil
companies and the other road construction companies to the
heads of complaint raised, even though the claimants had made
a request in that regard.

(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).

Defendant: Commission of the European Communities

Form of order sought

— annul the Commission's decision of 13 September 2006
relating to a proceeding under Article 81 EC (Case COMP/
38.456 — Bitumen — NL — C(2006) 4090 final) or at
least set that decision aside to the extent to which it finds
that BAM breached Article 81 EC, a fine is imposed on
BAM in that regard, BAM is enjoined to put an end to that
breach and to refrain in future from any of the acts or
conduct referred to in Article 1, and from any acts or
conduct having the same or similar objective or conse-
quences, and to the extent
to which that decision is
addressed to BAM;

— order the Commission to pay the costs.

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 submits that the Commis-
sion acted contrary to Article 81 EC and to Articles 7 and 23(2)
of Regulation No 1/2003 by concluding that the claimant had
breached Article 81 EC. According to the claimant, the Commis-
sion wrongly attributed to it, as the parent company, the breach
allegedly committed by a subsidiary.