Case T-352/06: Action brought on 5 December 2006 — Dura Vermeer Infra 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

C 20/22

EN

Official Journal of the European Union

27.1.2007

Form of order sought

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

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

liability of Dura Vermeer Infra is concerned; and

— order the Commission to pay the costs of the 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 alleges a breach of Article
81 EC by reason of the fact that the Commission failed to prove
that the claimant had participated in the fixing of the gross
prices for bitumen or that it had itself any interest whatever in
such fixing. The Commission thereby wrongly concluded that
the bitumen suppliers and the road construction companies had
participated in one and the same breach of Article 81 EC.

The claimant submits further that the Commission has failed to
demonstrate that the claimant participated in collusion between
a group of bitumen suppliers and a group of major road
construction companies for the purpose of fixing, on a regular
basis, a smaller
road
construction companies.

rebate on the gross price for other

Further, the claimant alleges, the Commission infringed Article
81 EC and the guidelines for the setting of fines in that it failed
to prove (i) that the claimant had participated in a very serious
breach of Article 81 EC and (ii) that the claimant's involvement
in the alleged breach had lasted from 1 April 1994 to 15 April
2002. Consequently, in the view of the claimant, the Commis-
sion took an excessively long period into account
for the
purpose of calculating the fine imposed on it.

In conclusion, the claimant alleges a breach of Article 253 EC
and an infringement of essential procedural requirements.

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 application, the claimant invokes the same
pleas in law and arguments as does the claimant in Case T-351/
06 Dura Vermeer Groep NV v Commission.

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

(Case T-353/06)

(2007/C 20/32)

Language of the case: Dutch

Parties

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

Defendant: Commission of the European Communities

Action brought on 4 December 2006 — BAM NBM Wegen-
bouw and HBG Civiel v Commission

Form of order sought

— principally, annul Decision C(2006) 4090 final of

the
Commission of the European Communities of 13 September
2006 relating to a proceeding under Article 81 EC (Case No
COMP/38.456 — Bitumen — NL); or

— in the alternative, annul Articles 1, 2(d) and 3 of the deci-
sion in so far as (i) those provisions find that Vermeer parti-
cipated in the fixing of the gross price for the sale and
purchase in the Netherlands of bitumen for use in road
construction, and (ii) a fine and an injunction were imposed
in that regard;

Parties

(Case T-354/06)

(2007/C 20/33)

Language of the case: Dutch

— in the further alternative, annul Article 2(d) of that decision

in so far as that provision imposed a fine on Vermeer;

Claimants: BAM NBM Wegenbouw BV and HBG Civiel BV (repre-
sented by: M.B.W. Biesheuvel and J.K. de Pree, lawyers)

— in the yet further alternative, reduce the fine imposed on

Vermeer by Article 2(d) of the decision; and

Defendant: Commission of the European Communities