Case T-351/06: Action brought on 5 December 2006 — Dura Vermeer 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 20/21

Pleas in law and main arguments

Defendant: Commission of the European Communities

In the contested decision the Commission reduced the amount
of financial assistance from the European Regional Development
the RESIDER-North Rhine-Westphalia
Fund
Programme.

(ERDF)

for

In support of its action the applicant claims infringement of
Article 24 of Regulation 4253/88 (1) since the requirements for
a reduction are not met. In that context it claims, in particular,
that the divergences from the indicative financing plan do not
constitute a significant change to the programme.

Form of order sought

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

liability of Dura Vermeer Groep is concerned; and

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

Even if there were a significant change to the programme, the
applicant submits that the Commission gave prior consent in
the form of its 'Guidelines for the financial closure of opera-
tional measures (1994 to 1999) of the Structural Funds' (SEC
(1999) 1316).

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.

Pleas in law and main arguments

Assuming that the requirements for a reduction are met, the
applicant claims that the defendant did not make use of its
discretionary power in relation to the specific programme. In
the applicant's view the Commission should have weighed up
whether a reduction of the ERDF assistance was proportionate.

Finally, the contested decision infringes the principle of sound
administration in that it required the applicant to bring a new
action against the decision, against which an action was already
pending.

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988, laying
down provisions for implementing Regulation (EEC) No 2052/88 as
regards coordination of the activities of the different Structural Funds
between themselves and with the operations of the European Invest-
ment Bank and the other existing financial instruments (OJ L 374 of
31.12.1988, p. 1).

In support of its application the claimant first submits that the
Commission has breached Article 81(1) EC and Article 23(2) of
Regulation No 1/2003. In the claimant's view, the Commission's
analysis is incorrect with regard to the case-law of the Court of
Justice and Court of First Instance on parent company liability
for an alleged breach by subsidiaries. The Commission for that
test on the claimant.
reason imposed an excessively strict
Furthermore, the claimant alleges, the Commission misrepre-
sented the factual description of
the applicable relationships
within the Dura Vermeer concern. The Commission therefore
failed to demonstrate that the claimant exercised a determining
influence over the conduct of Vermeer Infrastructuur BV.

Second, the claimant alleges infringement of the essential proce-
dural requirements set out in Article 253 EC and of the prin-
ciple that reasons must be given.

Action brought on 5 December 2006 — Dura Vermeer
Groep v Commission

Action brought on 5 December 2006 — Dura Vermeer
Infra v Commission

(Case T-351/06)

(2007/C 20/30)

Language of the case: Dutch

(Case T-352/06)

(2007/C 20/31)

Language of the case: Dutch

Parties

Parties

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

Claimant: Dura Vermeer Groep NV (represented by: M.M. Slot-
boom, lawyer)

Defendant: Commission of the European Communities