Case T-370/06: Action brought on 4 December 2006 — Kuwait Petroleum Corp. and others v Commission
Date: 2006-12-04
Institutions: Court of First Instance
Subjects: European Commission, 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 20/29

The applicant contends that the Council has infringed essential
procedural requirements and misused its powers by adopting
the contested regulation without properly considering the
underlying proceedings conducted by the Commission.

According to the applicant, the Commission i) did not properly
examine the standing of the complainants and/or failed to make
a proper determination of their standing, ii) considered irrele-
vant information and/or failed to take available information into
account, iii) made an inadequate assessment of the injury to the
relevant Community industry, iv) failed to establish that there
was a Community interest in imposing duties on imports, and
v) infringed the applicant's rights of defence.

The applicant alleges that this amounts to an abuse of powers.

and flora, (1) in so far as it includes some areas of the appel-
lant's property in SCI ES 6110006 which lack the necessary
environmental requirements; and

— arbitrary, in that it has excluded, in that same zone, areas
which have the required environmental values which call for
classification as a SCI.

(1) OJ L 206, 22.7.1992, p. 7

(1) OJ 2006 L 270, p. 4.

Action brought on 4 December 2006 — Kuwait Petroleum
Corp. and others v Commission

Action brought on 4 December 2006 — Calebus v
Commission

(Case T-366/06)

(2007/C 20/44)

Language of the case: Spanish

(Case T-370/06)

(2007/C 20/45)

Language of the case: English

Parties

Applicants: Kuwait Petroleum Corp. (Shuwaikh, Kuwait), Kuwait
Petroleum International Ltd (Woking, United Kingdom), and
Kuwait Petroleum (Nederland) BV (Rotterdam, The Netherlands)
(represented by: D.W. Hull, Dr. G. M. Berrisch, lawyers)

Parties

Defendant: Commission of the European Communities

Applicant: Calebus, S.A.
Bocanegra Sierra, lawyer)

(Almería, Spain)

(represented by: R.

Defendant: Commission of the European Communities

Form of order sought

Form of order sought

— Annul Commission Decision 2006/613/EC of 19 July 2006
(OJ 2006 L 259, p.1) approving the list of sites of Com-
munity importance for the Mediterranean biogeographical
region, in relation to the inclusion of the farm ‘Las Cuerdas’
as a SCI ‘ES6110006 Ramblas de Gergal, Tabernas y Sur de
Sierra Alhamilla’, appearing on that
the
Commission to change the delimitation of that SCI so as to
exclude the farm referred to.

list, and order

Pleas in law and main arguments

In support of its claims, the applicant submits that the contested
decision is:

— contrary to Council Directive 92/43/EEC of 21 May 1992
on the conservation of natural habitats and of wild fauna

— Annul Commission's Decision C(2006)4090

13
September 2006 insofar as it applies to the applicants; in
the alternative

of

— reduce the amount of the fine imposed;

— in any event, order the Commission to bear the costs of

these proceedings.

Pleas in law and main arguments

By a decision adopted on 13 September 2006 (the ‘contested
decision’), the Commission imposed on Kuwait Petroleum Corp.
(‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait
Petroleum (Nederland) BV (‘KPN’), the applicants,
jointly and
severally, a fine of EUR 16.632 million for infringing Article 81
EC by fixing prices in the Dutch bitumen market. Each of the
applicants hereby seeks the annulment of the contested decision
or, in the alternative, a reduction of the fine on the following
grounds:

C 20/30

EN

Official Journal of the European Union

27.1.2007

it

is claimed that

In their first plea, the applicants claim that the Commission
committed a manifest error of law and fact because it applied a
wrong legal standard in holding KPC and KPI liable for acts of
KPN and because it failed to provide adequate evidence under
the correct
the
legal standard. Precisely,
in the contested decision, found that both KPC
Commission,
and KPI are liable for the involvement of KPN's managers in the
Dutch bitumen cartel on the grounds that KPN is a wholly-
owned subsidiary of KPC and that each of KPC and KPI exercise
broad supervisory powers over KPN. The applicants submit that
a parent company may not be held liable on the basis of share-
holdings and broad supervisory powers alone, and that the
Commission must establish that the parent company exercised
sufficient control over the subsidiary's conduct on the market
affected by the infringement that it would be reasonable to
assume that
the subsidiary did not act autonomously with
respect to the infringement.

in their second plea, that the
The applicants further submit,
contested decision should be annulled or, in the alternative, the
fine reduced, because the Commission allegedly erred as a
matter of law in fining the applicants in contravention to the
2002 Leniency Notice (1), which provides that, when a leniency
applicant provides evidence relating to facts that were previously
unproven and those facts have a direct bearing on the gravity or
duration of the cartel, the Commission may not use such facts
against the leniency applicant.

in their

third plea,

the applicants submit

Finally,
the
Commission committed a manifest error of assessment in deter-
mining the percentage of the reduction in the fine pursuant to
the 2002 Leniency Notice, and accordingly argue that the fine
should be reduced by the maximum amount of 50 %.

that

(1) Notice on Immunity from Fines and Reduction of Fines in cartel

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

Action brought on 14 December 2006 — IMI and Others v
Commission

(Case T-378/06)

(2007/C 20/46)

Language of the case: English

Parties

Applicants: IMI plc (Birmingham, United Kingdom), IMI Kynoch
Ltd (Birmingham, United Kingdom), Yorkshire Fittings Limited

Italy),
(Leeds, United Kingdom), VSH Italia Srl
Aquatis France SAS (La Chapelle St. Mesmin, France), and
Simplex Armaturen + Fittings GmbH & Co. KG (Ravensburg,
Germany) (represented by: M. Struys and D. Arts, lawyers)

(Bregnano,

Defendant: Commission of the European Communities

Form of order sought

— Annul Articles 2(b)1. and 2(b)2. of

the
Commission of 20 September 2006 as amended by the deci-
sion of the Commission of 29 September 2006 relating to a
proceeding under Article 81 of the EC Treaty and Article 53
of the EEA Agreement (Case COMP/F-1/38.121 — Fittings
— C(2006) 4180 final);

the decision of

— alternatively reduce the fines imposed on the applicants; and

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission Deci-
sion C(2006) 4180 final of 20 September 2006 in Case COMP/
F-1/38.121 — Fittings, by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by fixing prices, agreeing on price lists, agreeing
on discounts and rebates, agreeing on implementation mechan-
isms for introducing price increases, allocating national markets,
allocating customers and exchanging other commercial informa-
tion.

In support of their application, the applicants submit that the
Commission has violated the principles of proportionality and
of non-discrimination as the fine imposed on the applicants in
the contested decision is excessive in terms of the size of the
applicants as well as of the relevant market when compared to
the Commission's approach in its previous decisions. By
including sales of press fittings in the size of
the relevant
market for the purpose of assessing the gravity of the infringe-
the Commission has committed a manifest error of
ment,
assessment.

The applicants further submit that the Commission committed
a manifest error of assessment by considering that the applicants
did not provide the evidence of the link between the UK and
pan-European arrangements. The Commission provided an
inadequate statement of reasons in that regard. Furthermore, by
refusing to grant the applicants a reduction in their fines for
their cooperation outside the Leniency Notice (1) for providing
evidence of a link between the UK and the pan-European cartel,
while granting the company FRA.BO a reduction in its fine on
the same basis for providing evidence of post-inspection conti-
nuation, the Commission breached the principle of equal treat-
ment.