Case T-495/07: Action brought on 20 December 2007 — Productos Asfálticos (Proas) v Commission
Date: 2007-12-20
Institutions: Court of First Instance
Subjects: European Commission, Spain, action for annulment (EU), construction equipment, control of restrictive practices, unlawful agreement

C 64/48

EN

Official Journal of the European Union

8.3.2008

— annul Memorandum No 011871 of 8 November 2007 of
the European Commission, Directorate General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Italy, Malta and the Netherlands — concerning
Hungary,
payments made by the Commission which differ from the
amount requested. Ref: DOCUP Ob 2 ‘Lazio’ 2000-2006
(No CCI 2000 IT 16 2DO 009);

— annul Memorandum No 012137 of 15 November 2007 of
the European Commission, Directorate General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Italy, Malta and the Netherlands — concerning
Hungary,
certification and declaration of intermediate expenses and
request for payment. Ref: DOCUP Veneto Ob 2 2000-2006
(No CCI 2000 IT 16 2DO 005);

— annul Memorandum No 012139 of 15 November 2007 of
the European Commission, Directorate General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Italy, Malta and the Netherlands — concerning
Hungary,
payments made by the Commission which differ from the
amount
requested. Ref: Programma Operativo Regionale
‘Campania’ 2000-2006 (No CCI 1999 IT 16 1PO 007);

— annul Memorandum No 012212 of 16 November 2007 of
the European Commission, Directorate General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary,
Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount
requested. Ref: PON Sviluppo Imprenditoriale
Locale 2000-2006 (No CCI 1999 IT 16 1PO 002);

— annul Memorandum No 012567 of 26 November 2007 of
the European Commission, Directorate General for Regional
Policy — Programmes and projects in Cyprus, Greece,
Hungary,
Italy, Malta and the Netherlands — concerning
payments made by the Commission which differ from the
amount
requested. Ref: Programma Operativo Regionale
‘Sardegna’ 2000-2006 (No CCI 1999 IT 16 1PO 010); and

Action brought on 20 December 2007 — Productos
Asfálticos (Proas) v Commission

(Case T-495/07)

(2008/C 64/79)

Language of the case: Spanish

Parties

Applicant: Productos Asfálticos
(Proas), SA (Madrid, Spain)
(represented by: C Fernandez Vicién, P Carmona Botana and A.
Pereda Miquel, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision [C(2007) 4441],or alterna-
tively, reduce the fine imposed on Productos Asfálticos SA,
and

— Order the Commission to pay all the costs of these proceed-

ings.

— annul all related and prior acts and, accordingly, order the
Commission of the European Communities to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The pleas in law and main arguments are those invoked in Case
T-345/04 Italian Republic v Commission (1).

(1) OJ C 262 of 23.10.2004, p. 55.

The action is directed against Commission Decision C(2007)
4441 final of 3 October 2007in the Case COMP/38710 —
Bitumen Spain.
the Commission
In the contested decision,
declared that the applicant, together with other companies, had
infringed Article 81 EC by having taken part, over a certain
period, in a set of agreements and concerted practices in the
market for penetration bitumen, namely agreements for sharing
the market and coordinating prices. In respect of those infringe-
ments the Commission imposed a fine for which the applicant
and another company are jointly and severally liable.

its claims, the applicant first alleges that the
In support of
Commission erred in the assessment of
In that
context, the applicant considers that the Commission incorrectly
assessed the seriousness of the infringement and the position of
the applicant
in the cartel, with particular reference to its
specific weight in the market and the assessment that it was co-
leader of the cartel.

the facts.

8.3.2008

EN

Official Journal of the European Union

C 64/49

the

that

applicant

complains

the Commission
Secondly,
infringed the applicable law. The applicant claims that
the
contested decision infringes the principle of equal treatment by
incorrectly applying the Notice on cooperation of 2002 (1),
infringes the principle of sound administration by not having
completed the procedure within a reasonable time and sets a
fine which is above the lawful limit established in Regulation
(EC) No 1/2003 (2), thereby infringing the principle of propor-
tionality.

In addition,
the applicant considers
infringed the obligation to state reasons.

that

the Commission

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002, C 45, p. 3).

(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).

Action brought on 18 December 2007 — Repsol YPF
Lubricantes y especialidades and Others v Commission

(Case T-496/07)

(2008/C 64/80)

Language of the case: Spanish

Parties

Applicants: Repsol YPF Lubricantes y especialidades SA (Madrid,
Spain) Repsol Petróleo, SA (Madrid, Spain), Repsol YPF, SA
(Madrid, Spain)
J. Buendía
Sierra and M. Muñoz de Juan, lawyers)

(represented by: L. Ortiz Blanco,

Defendant: Commission of the European Communities

Form of order sought

— Annul the Decision [C(2007) 4441] to the extent that it

— Attributes joint and several liability for the infringement

to Repsol Petróleo, SA;

— Attributes joint and several liability and affiliate liability

to Repsol YPF, SA;

— Determines the basic amount in a manner contrary to
taking into

the principle of proportionality by not

account either
the restricted geographic extent and
economic value of the market affected or the effects on
the market (which failing, the slight impact);

— applies incorrectly the Notice on leniency, in particular
the fine

in relation to the percentage reduction of
granted to Repsol: and

— treats leadership as an aggravating factor

— Reduce the fine imposed on Repsol in the exercise of the
Court's unlimited jurisdiction to an appropriate amount;

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

Pleas in law and main arguments

The action is directed against Commission Decision C(2007)
4441 final of 3 October 2007in the Case COMP/38710 —
Bitumen Spain.
the Commission
In the contested decision,
declared that the applicant, together with other companies, had
infringed Article 81 EC by having taken part, over a certain
period, in a set of agreements and concerted practices in the
market for penetration bitumen, namely agreements for sharing
the market and coordinating prices. In respect of those infringe-
ments the Commission imposed a fine for which the applicants
are jointly and severally liable.

In support of their claims, the applicants allege first an error of
assessment of the facts and an error of law in the incorrectly
attribution of responsibility for the infringement to the parent
companies of Repsol YPF Lubricantes y especialidades SA. In
that context,
the applicants consider that the attribution of
affiliate liability contravenes Community law.

Secondly, the applicants allege that the Commission infringed
the principle of proportionality in calculating the initial amount.

Thirdly, the applicants allege a manifest error of assessment or
alternatively an infringement of the general principles of protec-
tion of legitimate expectations, proportionality and equal treat-
ment in determining the percentage reduction of the fine in
accordance with the Notice on cooperation of 2002 (1).

Lastly, the applicants consider that the Commission committed
a manifest error of assessment in relation to the evaluation
leadership of the cartel
jointly with another company as an
aggravating factor.

(1) Commission notice on immunity from fines and reduction of fines

in cartel cases (OJ 2002, C 45, p. 3).