Case T-349/06: Action brought on 4 December 2006 — Germany v Commission
Date: 2007-01-27
Institutions: Court of First Instance
Subjects: European Commission, European Regional Development Fund, Germany, North Rhine-Westphalia, action for annulment (EU), aid system, operational programme

C 20/20

EN

Official Journal of the European Union

27.1.2007

Action brought on 4 December 2006 — Total Nederland v
Commission

(Case T-348/06)

(2007/C 20/28)

Language of the case: English

Parties

Applicant: Total Nederland NV (Voorburg, Netherlands) (repre-
sented by: A. Vandencasteele, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul Article 1 of

the Commission Decision of 13
September 2006 (Case COMP/38.456 — Bitumen — Neder-
land) in so far as it finds the existence of a single continuous
infringement by the applicant from 1994 to 2002 rather
than from 1996 to 2002;

— annul Article 2 of the decision in so far as:

(i) it fails to take into account the reduced duration of the

infringement referred to above;

(ii) it fails to properly assess the gravity of the infringe-

ment;

(iii) it

fails to acknowledge the existence of mitigating

circumstances;

(iv) it increases the fine for deterrence purpose taking into
account
the turnover of Total SA which it wrongly
considers to have participated to the applicant's infrin-
gement

— reduce,

in the exercise of its unlimited jurisdiction under
Article 31 of Council Regulation 1/2003, the level of fine so
as to properly reflect the nature of the applicant's involve-
ment in the practice;

— order the Commission to pay the costs.

Pleas in law and main arguments

the applicant,

The applicant seeks the partial annulment of Commission Deci-
sion C(2006) 4090 final of 13 September 2006 in Case COMP/
F/38.456 — Bitumen — NL, by which the Commission found
that
together with other undertakings, had
infringed Article 81 EC by regularly collectively fixing, for sales
and purchases of road pavement bitumen in the Netherlands,
the gross price, a uniform rebate on the gross price for partici-
pating road builders and a smaller maximum rebate on the
gross price for other road builders.

take into account evidence showing that the agreement from
1994 was entered into for one year only and broken off before
its term and by misconstruing evidence in claiming that a
continuous adherence in 1995 to some of the terms of the
1994 agreement was shown.

Moreover, the applicant alleges that the Commission failed to
demonstrate that the applicant actually implemented the agree-
ment while it relied on such an implementation when assessing
the gravity of the infringement.

Furthermore, the applicant contends that the Commission failed
to take into account evidence demonstrating that the applicant
breached the agreement.

Finally, the applicant considers that the Commission committed
an error of
law by calculating the multiplier for deterrence
applied to the applicant's fine on the turnover of the parent
company Total SA. The Commission thereby relied, without
justification, on a presumption of participation by the parent
company and retained a concept of objective per se liability for
the parent company.

Action brought on 4 December 2006 — Germany v
Commission

(Case T-349/06)

(2007/C 20/29)

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M.
Lumma, C. Schulze-Bahr and C. von Donat, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The Court is asked to:

— annul Commission Decision C(2006) 4194 final of 25
September 2006 reducing the financial assistance from the
ERDF granted by Commission Decision No C(95) 1736 of
27 July 1995 for the Operational Programme RESIDER
North Rhine-Westphalia (ERDF No 49.02.10.036/ARINCO
No 94.DE.16.051);

In support of its application, the applicant submits that the
Commission made a manifest error of assessment by failing to

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

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