Case T-357/06: Action brought on 5 December 2006 — Koninklijke Wegenbouw Stevin 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 20/24

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.

27.1.2007

EN

Official Journal of the European Union

C 20/25

The claimant also invokes a breach of Article 81 EC and of
Article 23 of Regulation No 1/2003 in regard to the determin-
ation of the level of the fine imposed. According to the clai-
mant,
the fine was too high and the
increases imposed for non-cooperation and its ostensible role as
instigator and cartel leader were unjustified.

the basic amount of

the claimant submits

In conclusion,
the Commission
refused to allow it access to the reactions to the heads of
complaint of all the other parties to which those heads of
complaint were addressed. In the claimant's view, that course of
conduct is contrary to the rights of the defence.

that

Action brought on 5 December 2006 — Wegenbouw-
maatschappij J. Heijmans v Commission

(Case T-358/06)

(2007/C 20/37)

Language of the case: Dutch

Parties

Claimant: Wegenbouwmaatschappij J. Heijmans B.V. (represented
by: M.F.A.M. Smeets and A.M. van den Oord, lawyers)

Defendant: Commission of the European Communities

Form of order sought

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

mans N.V. and Heijmans Infrastructuur B.V.;

— set aside or reduce the fine imposed on Heijmans N.V. and

Heijmans Infrastructuur B.V.;

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

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). Although
the decision is not addressed to the claimant, it takes the view
that it is directly and individually concerned by it inasmuch as it
is mentioned in the decision as being part of the Heijmans
Group and must expect, by reason of the decision, to be held
liable in regard to the conduct in issue.

In support of its action, the claimant first of all submits that
there has been a breach of Article 81 EC and of Articles 2, 7
and 23(2) of Regulation No 1/2003 in that the Commission
wrongly assumed that the Netherlands market for bitumen used
in road construction constituted the relevant economic context
for the appraisal of the evidence against Heijmans Infrastructuur
B.V. The claimant further submits that the Commission also

wrongly assumed that Heijmans Infrastructuur B.V. was part of
a permanent cartel of road construction undertakings operating
with regard to the purchase of bitumen for road construction
and, in that capacity, colluded with the suppliers of bitumen in
the Netherlands with a view to restricting competition. Lastly,
according to the claimant, the Commission unjustly failed, on
the basis of the guidelines on horizontal cooperation, to check
solely the consequences of the participation of Heijmans Infra-
structuur B.V.in that collusion. (1)

Second, the claimant alleges that there has been a breach of
Article 81 EC and of Articles 11 and 16 of Regulation No 1/
2003, as well as infringement of the duty of care, the general
principles of sound administration, the principle of equality and
the rights of the defence by reason of the fact that the Commis-
sion disregarded the reasoned substantive and procedural
defence submissions made by Heijmans Infrastructuur B.V. and
Wegenbouwmaatschappij J. Heijmans B.V. during the adminis-
trative procedure as being an 'innocent interpretation of the
events'.

Third, the claimant alleges infringement of the principle that
reasons must be given in that the decision is unclear or ambig-
uous in certain vital sections.

the claimant argues the
By way of alternative submission,
Commission has adduced no, or
insufficient, evidence to
substantiate the claim that Heijmans Infrastructuur B.V. partici-
pated in the alleged infringement over the entire period thereof.

Also in the alternative, the claimant submits that the Commis-
sion incorrectly assessed the gravity and scope of the infringe-
ment. It argues that Heijmans Infrastructuur B.V. played merely
a minor role on the relevant market.

(1) Guidelines on the applicability of Article 81 of the EC Treaty to hori-
zontal cooperation agreements (text with EEA relevance) (OJ 2001
C 3, p. 2).

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

(Case T-359/06)

(2007/C 20/38)

Language of the case: Dutch

Parties

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

Defendant: Commission of the European Communities