Case T-355/06: Action brought on 5 December 2006 — Koninklijke BAM Groep 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

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.

C 20/24

EN

Official Journal of the European Union

27.1.2007

In the alternative, the claimant submits that the Commission
incorrectly determined the amount of the fine imposed on it.
The Commission imposed a fine based on a period of two years
and five months during which the claimant allegedly held
100 % of the shares in BAM NBM, whereas that period in fact
amounted only to one year and five months.

Action brought on 5 December 2006 — Koninklijke
Wegenbouw Stevin v Commission

(Case T-357/06)

(2007/C 20/36)

Language of the case: Dutch

Action brought on 5 December 2006 — Koninklijke Volker
Wessels Stevin v Commission

(Case T-356/06)

(2007/C 20/35)

Language of the case: Dutch

Parties

Claimant: Koninklijke Wegenbouw Stevin BV (represented by: E.
H. Pijnacker Hordijk and Y. de Vries, lawyers)

Defendant: Commission of the European Communities

Parties

Claimant: Koninklijke Volker Wessels Stevin NV (represented by:
E.H. Pijnacker Hordijk and Y. de Vries, lawyers)

Form of order sought

Defendant: Commission of the European Communities

Form of order sought

— set aside Articles 1, 2 and 3 of the Decision of 13 September
2006 relating to a proceeding under Article 81 EC (Case No
COMP/38.456 — Bitumen — NL), or at least set that deci-
sion aside to the extent to which it is addressed to Konink-
lijke Volker Wessels Stevin;

— order the Commission to pay its own costs and also those

of Koninklijke Volker Wessels Stevin.

— set aside, in relation to the claimant, the Commission's deci-
sion of 13 September 2006, notification of which Konink-
lijke Wegenbouw Stevin received on 25 November 2006,
relating to a proceeding under Article 81 EC (Case
No COMP/38.456 — Bitumen — NL — C(2006) 4090
final);

— in the alternative, annul Article 2 of the decision in relation
to the claimant, or in any event reduce substantially the fine
imposed on the claimant by Article 2 of the decision;

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

Pleas in law and main arguments

Pleas in law and main arguments

is challenging the Commission's decision of
The claimant
13 September 2006 relating to a proceeding under Article
81 EC (Case No COMP/38.456 — Bitumen — NL), which
imposed a fine on the claimant for breach of Article 81 EC.

is challenging the Commission's decision of
The claimant
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 a breach of Article
81 EC and of Articles 7 and 23(2) of Regulation No 1/2003.
According to the claimant, the Commission applied an incorrect
standard for the purpose of determining the liability of a parent
company and in so doing wrongly concluded that the claimant
was principally liable for the alleged conduct of Koninklijke
Wegenbouw Stevin B.V.

In support of its action, the claimant alleges, in the first place,
that there was an incorrect analysis of the facts, resulting in a
defective appraisal of
the road construction
the conduct of
companies in the light of Article 81 EC. According to the clai-
mant, the suppliers of bitumen were involved in a classic and
extremely serious breach of the European competition rules. It
states that the five leading customers for bitumen for road
construction attempted to establish a counter-balance to this
cartel with the primary objective of securing for themselves
collective rebates that were as favourable as possible.