Case T-361/06: Action brought on 5 December 2006 — Ballast Nedam v Commission
Date: 2006-12-05
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 20/26

EN

Official Journal of the European Union

27.1.2007

Form of order sought

— set aside, in whole or in part, the decision addressed to the

claimant;

— set aside or reduce the fine imposed on the claimant;

— order the Commission to pay the costs of

the present

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 invokes the same pleas in
law and arguments as those set out by the claimant in Case T-
358/06 Wegenbouwmaatschappij J. Heijmans B.V. v Commission.

Action brought on 5 December 2006 — Heijmans v
Commission

(Case T-360/06)

(2007/C 20/39)

Language of the case: Dutch

Parties

The claimant first submits that there has been a breach of
Article 81 EC and of Articles 2, 7 and 23(3) of Regulation
No 1/2003. According to the claimant, the Commission has not
proved that the claimant is a unitary organisation of natural
persons and of material and immaterial assets which acted
contrary to Article 81 EC by regulating the fixing of bitumen
prices in the Netherlands. Furthermore, the claimant contends,
there is no basis in law on which the claimant can be held prin-
cipally liable and that determination of liability is unreasonable.

In support of its action, the claimant also relies on the similar
pleas and arguments submitted by the claimant in Case T-358/
06 Wegenbouwmaatschappij J. Heijmans B.V. v Commission.

Action brought on 5 December 2006 — Ballast Nedam v
Commission

(Case T-361/06)

(2007/C 20/40)

Language of the case: Dutch

Parties

Claimant: Ballast Nedam N.V. (represented by: A.R. Bosman and
J.M.M. van de Hel, lawyers)

Defendant: Commission of the European Communities

Claimant: Heijmans NV (represented by: M.F.A.M. Smeets and A.
M. van den Oord, lawyers)

Form of order sought

Defendant: Commission of the European Communities

Form of order sought

— annul in whole or in part the decision addressed to the clai-

mant;

— set aside or reduce the fine imposed on the claimant;

— order the Commission to pay the costs of

the present

proceedings.

— annul Commission Decision C(2006) 4090 final of
claimant on
13 September 2006, notified
25 September 2006, relating to a proceeding under Article
81 EC (Case No COMP/38.456 — Bitumen — NL), to the
extent to which that decision is addressed to the claimant;

to the

— in the alternative, annul the decision in part, to the extent to
which it is addressed to the claimant, with regard to the
duration of the infringement and reduce the fine imposed
on the claimant accordingly;

— order the Commission to pay the costs of

the present

proceedings.

Pleas in law and main arguments

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), whereby a
fine was imposed on the claimant for breach of Article 81 EC.

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.

27.1.2007

EN

Official Journal of the European Union

C 20/27

the Commission assumed, on
According to the claimant,
grounds that are legally and factually flawed, that the claimant
exercised a determining influence on the market conduct of
Ballast Nedam Infra B.V. and Ballast Nedam Grond en Wegen B.
V.

In support of its action, the claimant invokes, in the first place,
a breach of Article 81 EC. Second, the claimant submits that
there has been an infringement of the general principles of
Community law, in particular the principle of the presumption
of innocence. In conclusion, the claimant contends that there
has been a breach of Article 27(1) of Regulation No 1/2003
and of the rights of the defence in that it was not until the deci-
sion that the claimant's liability was assumed. The claimant was
thus not given an opportunity to disprove that view by addu-
cing evidence.

Action brought on 5 December 2006 — Ballast Nedam
Infra v Commission

(Case T-362/06)

(2007/C 20/41)

Language of the case: Dutch

Parties

Claimant: Ballast Nedam Infra B.V. (represented by: A.R. Bosman
and J.M.M. van de Hel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul Commission Decision C(2006) 4090 final of
13 September 2006, notified
claimant on
25 September 2006, relating to a proceeding under Article
81 EC (Case No COMP/38.456 — Bitumen — NL), to the
extent to which that decision is addressed to the claimant;

to the

— in the alternative, set aside Article 2 of the decision, to the
extent to which it is addressed to the claimant, or at least
reduce the fine imposed on it by the said Article 2;

— set aside in part Article 1 of the decision, in so far as it
relates to the duration of the infringement up to October
2000, and consequently reduce the fine imposed in Article
2 of the decision, in so far as the claimant is concerned;

— order the Commission to pay the costs of

the present

proceedings.

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 invokes, in the first place,
a breach of Article 81 EC and of Article 23(2) of Regulation
No 1/2003. According to the claimant, the Commission has
failed to adduce any evidence of a single ongoing breach of
Article 81 EC. The claimant submits that the Commission has
adduced no evidence that the bitumen suppliers and the major
road construction companies jointly fixed the gross price for
bitumen and that the major road construction companies had
an interest in concluding those agreements. The claimant argues
that the Commission also erred in classifying as a breach of
Article 81 EC the agreement on the standard rebate and the
desire on the part of the road construction companies to secure
for themselves better conditions than small road construction
companies with a less extensive purchase volume.

Second, the claimant invokes a breach of Article 81 EC and of
Article 23(2) of Regulation No 1/2003 and the Commission's
guidelines on setting fines (1). The claimant argues that
the
Commission incorrectly assessed the gravity of the breach.

Third, the claimant alleges a breach of Article 81 EC in that the
Commission assumed, on grounds that are incorrect in both
factual and legal terms, that the claimant exercised a deter-
mining influence on the market conduct of Ballast Nedam
Grond en Wegen B.V.

The claimant concludes by invoking a breach of Article 27(1) of
Regulation No 1/2003 and of the rights of the defence by
reason of the fact that the Commission deprived the claimant of
the opportunity to challenge a number of new elements in the
decision concerning the claimant's involvement in the alleged
infringement during the period from 21 June 1996 to
1 October 2000 inclusive.

(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).

Action brought on 5 December 2006 — Honda Motor
Europe v OHIM — SEAT (MAGIC SEAT)

(Case T-363/06)

(2007/C 20/42)

Language in which the application was lodged: English

Pleas in law and main arguments

Parties

is challenging the Commission's decision of
The claimant
13 September 2006 relating to a proceeding under Article

Applicant: Honda Motor Europe Ltd (Slough, United Kingdom)
(represented by: S. Malynicz, Barrister, N. Cordell, Solicitor)