Case T-385/06: Action brought on 14 December 2006 — Aalberts Industries and Others v Commission
Date: 2006-12-14
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

27.1.2007

EN

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.

C 20/34

EN

Official Journal of the European Union

27.1.2007

Moreover, the applicants contend that the Commission breached
Article 253 EC as the contested decision does not provide any
statement of reasons for imposing an additional amount of
EUR 2.04 million on the applicants Aquatis France and Simplex
Amaturen + Fittings.

— the fine for which the applicant is made jointly and severally
liable pursuant to Article 2(h) is reduced to EUR 1.7 million.

— In either case, the defendant should be ordered to bear the

costs of this appeal.

that

the applicants submit

Fifthly,
the Commission violated
Article 2 of Regulation 1/2003 (1) and the principle of equality
of arms by shifting the burden of proof on the applicants by
relying entirely on leniency statements and by refusing to use its
fact-finding powers. Furthermore, the applicants contend that
the Commission
of Regulation
773/2004 (2) by including in the contested decision objections
which were not formulated against the applicants in the State-
ment of Objections.

violated Article

11(2)

(1) 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).

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).

Action brought on 15 December 2006 — Pegler v
Commission

(Case T-386/06)

(2007/C 20/51)

Language of the case: English

Pleas in law and main arguments

The applicant seeks 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 applicant, 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 its application, the applicant submits that the
Commission has not
factual documentary
taken account of
evidence from the applicant and that the contested decision
should have been addressed exclusively to the applicant's former
parent company Tomkins for the following reasons.

Concerning the period from 31 December 1988 to 20 January
1989 the Commission has, according to the applicant, imposed
liability on the applicant simply by virtue of its acquisition on
20 January 1989 of the name ‘Pegler Ltd’ and by virtue of the
existence of an agency relationship with the Tomkins group
company FHT Holdings Ltd (‘FHT’) in circumstances where the
applicant did not acquire any of
the underlying assets,
employees or liabilities and remained dormant, receiving no
remuneration in its capacity as agent for FHT.

Parties

Applicant: Pegler Ltd (Doncaster, United Kingdom) (represented
by: R. Thompson, QC, and A. Collinson, solicitor)

Defendant: Commission of the European Communities

Concerning the period from 20 January 1989 to 29 October
1993 the applicant submits that the Commission has imposed
liability on the applicant for acts that could only have been
carried out as agent
in circumstances where FHT
owned all of the underlying assets, employees or liabilities of
the ‘Pegler’ business.

for FHT,

Form of order sought

— Annul Articles 1 and 3 of the Decision COMP/F-1/38.121

in respect of the applicant; and

— annul Article 2(h) of the decision in so far as it imposes a

fine jointly and severally on the applicant.

— Alternatively, order

to
Article 2(h) of the decision is reduced to EUR 5.2 million;
and

the fine imposed pursuant

that

The Commission has, according to the applicant, failed to iden-
tify a clear addressee for the contested decision and has instead
addressed its decision in respect of
the same facts to two
different undertakings.

The applicant contends, moreover, that the Commission has,
inconsistently with the principle of equality of treatment, with
Article 23 of Regulation 1/2003 (1) and with the Commission's
fining guidelines (2),
imposed on two different undertakings
joint and several
liability for payment of a fine calculated
without reference to their individual circumstances but rather
i.e.
on the individual circumstances of only one of
Tomkins.

them,