Case T-384/06: Action brought on 13 December 2006 — IBP and International Building Products France v Commission
Date: 2006-12-13
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), exchange of information, fine, piping, price agreement, restriction on competition, trade information, unlawful agreement

C 20/32

EN

Official Journal of the European Union

27.1.2007

— declare that the Community is non-contractually liable and
order the European Parliament to pay the applicant the sum
of EUR 58 700 as compensation for the costs incurred in
the framework of the call for tenders, as well as an amount
for non-pecuniary damage by way of damage to reputation,
and appoint an expert to assess that damage.

— in any event, order the European Parliament to pay the costs

of the present proceedings.

Action brought on 13 December 2006 — IBP and Interna-
tional Building Products France v Commission

(Case T-384/06)

(2007/C 20/49)

Language of the case: English

Pleas in law and main arguments

The applicant challenges the decision of the European Parlia-
ment rejecting the applicant's tender relating to the call for
tenders EP/DGINFO/WEBTV/2006/0003,
lot 2: programme
contents, with a view to the creation of a European Parliament
web television channel. (1)

In support of its action, the applicant pleads, first, a manifest
irregularity in the procedure leading to the adoption of the
contested decision, due to the lack of competence of the author
of the measure, the infringement of Article 101 of the Financial
Regulation (2) and the infringement of Article 149 of Regulation
No 2342/2002. (3)

Secondly, the applicant claims that (a) the Parliament adopted a
decision contrary to that initially issued on 7 August 2006
awarding it the contract, without giving reasons for this change,
and (b) the selection criteria followed in the contested decision
are not those which were applied in the context of the first deci-
sion of the Parliament, and are not defined as such in the call
for tenders. The selection criteria contained therein, the princi-
ples of equal treatment and transparency and the duty to state
reasons have therefore been contravened.

(1) Contract notice:

‘European Parliament web television channel’

(OJ

2006 S 87-091412)

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002
on the Financial Regulation applicable to the general budget of the
European Communities (OJ 2002 L 248, p. 1)

(3) Commission Regulation (EC, Euratom) No 2342/2002 of 23
December 2002 laying down detailed rules for the implementation
of Council Regulation (EC, Euratom) No 1605/2002 on the Financial
Regulation applicable to the general budget of
the European
Communities (OJ 2002 L 357, p. 1)

Parties

Applicants: IBP Ltd (Tipton, United Kingdom) and International
Building Products France SA (Sartrouville, France) (represented
by: M. Clough, QC, and A. Aldred, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— Annul the decision insofar as it relates to the applicants in
respect of the period from 23 November 2001 to 1 April
2004;

— in any event, cancel the fine imposed on the applicants or
reduce such fine by the amount considered appropriate by
the Court in all the circumstances;

— order the Commission to pay the applicants' costs.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission Deci-
sion C(2006) 4180 final of 20 September 2006 in Case COMP/
F-1/38.121 — Fittings, by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by fixing prices, agreeing on price lists, agreeing
on discounts and rebates, agreeing on implementation mechan-
isms for introducing price increases, allocating national markets,
allocating customers and exchanging other commercial informa-
tion.

In support of their application, the applicants submit that the
Commission infringed Article 81 EC by concluding that the
applicants were party to a single, complex and continuous
infringement in breach of Article 81 EC during the period from
23 November 2001 to 1 April 2004, when the evidence before
it does not, according to the applicants, support that finding.

the

Furthermore,
the Commission,
contrary to Article 253 EC, has not provided reasons, or has
provided insufficient reasons, for its findings.

applicants

allege

that

right

the applicants claim that

the Commission has
Moreover,
infringed their
to be heard by finding infringements
without previously stating the case against the applicants in any
statement of objections or allowing the applicants to comment
prior to the adoption of the contested decision.

27.1.2007

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Official Journal of the European Union

C 20/33

As for the cancellation or reduction of the fine imposed on the
applicants, they submit that:

— annul Article 2 b)(2) in as far as Aquatis and Simplex are

concerned;

a) the Commission failed to apply Article 15(2) of Regulation
No 17 (1), Article 23(2) of Regulation No 1/2003 (2) and
Article 5(a) of the 1998 Guidelines on the method of setting
fines (3);

b) the Commission has fined International Building Products
France the sum of EUR 5.63 million twice for the same
conduct;

— or, in the alternative, reduce significantly the amount of the

fine imposed on the applicants;

— order, in both cases, that the costs be paid by the Commis-

sion.

c) the Commission has misapplied the 1998 Guidelines on the

Pleas in law and main arguments

method of setting fines; and

d) the Commission has misapplied the 1996 Leniency

Notice (4).

(1) Council Regulation No 17 of 6 February 1962, First Regulation
the Treaty (OJ, English

implementing Articles [81] and [82] of
Special Edition 1959-1962, p. 87).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1).

(3) Commission Notice of 14 January 1998 entitled ‘Guidelines on the
method of setting fines imposed pursuant to Article 15(2) of Regu-
lation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9,
p. 3).

(4) Commission Notice on the non-imposition or reduction of fines in

cartel cases (OJ 1996 C 207, p. 4).

Action brought on 14 December 2006 — Aalberts Indus-
tries and Others v Commission

(Case T-385/06)

(2007/C 20/50)

Language of the case: English

Parties

Applicants: Aalberts
Industries NV (Utrecht, Netherlands),
Aquatis France (La Chapelle St. Mesmin, France), and Simplex
Armaturen + Fittings GmbH & Co. KG (Argenbühl-Eisenharz,
Germany) (represented by: R. Wesseling and M. van der Woude,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1, Article 2 a), Article 3;

The applicants seek the partial annulment of Commission Deci-
sion C(2006) 4180 final of 20 September 2006 in Case COMP/
F-1/38.121 — Fittings, by which the Commission found that
the applicants, together with other undertakings, had infringed
Article 81 EC and Article 53 of the Agreement on the European
Economic Area by fixing prices, agreeing on price lists, agreeing
on discounts and rebates, agreeing on implementation mechan-
isms for introducing price increases, allocating national markets,
allocating customers and exchanging other commercial informa-
tion.

In support of their application, the applicants invoke five pleas
in law in order to demonstrate that the Commission's decision
is based on manifest errors of appreciation and violations of
Article 81 EC and general principles of proper administration.

Firstly, the applicants submit that Alberts did not exercise deci-
sive influence over the commercial behaviour of its portfolio
companies Aquatis and Simplex Armaturen + Fittings and that
Alberts has rebutted the presumption of decisive influence. The
applicant Alberts should therefore not be held liable for Aquatis
and Simplex Armaturen + Fittings alleged infringements.

Secondly, the applicants contend that a) some of the documents
and statements held against the applicants fall outside the liti-
gious period in that they relate to events after 1 April 2004,
and b) other elements cannot be held against the applicants
because they were not part of
the Statement of Objections
addressed to the applicants. Even so, the applicants claim that
these documents and statements do not prove, individually or
cumulatively, an infringement of Article 81 EC on their side.

Thirdly, the applicants submit that the elements relied upon by
the Commission do not establish to the requisite legal standard
that the general cartel continued after the inspections in April
2001. Nor does the contested decision, according to the appli-
cants, contain any justification for linking the applicant's market
conduct to such an alleged scheme.

Fourthly, the applicants allege that the fine should be reduced as
the Commission misapplied the fining guidelines and made
errors in the calculation of the fine by an illegal setting of the
starting amount as a) the alleged infringement cannot be quali-
fied as ‘very serious’, b) the actual impact of the infringement
has not been properly taken into account, and c) the size of the
relevant geographic market has been wrongly identified as being
the EEA.