Action brought on 4 July 2007 - Heineken Nederland and Heineken v Commission

(Case T-240/07)

Language of the case: Dutch

Parties

Applicants: Heineken Nederland BV and Heineken NV (represented by: T. Ottervanger and M.A. de Jong, lawyers)

Defendant: Commission of the European Communities

Form of order sought

set aside in whole or in part the decision addressed to, inter alia, the applicants;

set aside or reduce the fine imposed on the applicants;

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

Pleas in law and main arguments

The applicants are challenging the Commission decision of 18 April 2007 relating to a proceeding under Article 81 EC (Case COMP/B-2/37.766 - Netherlands beer market), by which a fine was imposed on the applicants.

In support of their action, the applicants first put forward a number of procedural heads of complaint. First, they allege infringement of the principle of sound administration during the investigation and breach of Article 27 of Regulation No 1/2003 in that the Commission refused access to the defence submissions of the other undertakings. Second, the applicants allege that the Commission failed to carry out a careful and impartial investigation. Third, the applicants submit that the conduct of the Competition Commissioner amounted to an infringement of the principle of the presumption of innocence. Fourth, they claim that the Commission failed to comply with the requirement that proceedings be concluded within a reasonable period of time, as a result of which the applicants argue that their rights of defence were breached.

The applicants further allege a breach of Article 81 EC. In that connection, the applicants first submit that there was a defective adduction of evidence, disregard for the presumption of innocence and infringement of the principle that reasons must be given. Second, the applicants dispute the contention that there were agreements and/or concerted practices in this case. Third, the applicants argue that the Commission erred in its calculation of the duration of the alleged breach.

The applicants also put forward a number of heads of complaint concerning the determination of the amount of the fine. They first allege a breach of Article 23(3) of Regulation No 1/2003, incorrect application of the guidelines on setting fines, infringement of the principles of equality, legal certainty and proportionality and breach of the obligation to state reasons. The applicants argue that the Commission erred in its assessment of the gravity of the breach, in particular through misappraisal of the nature of the breach, by failing to take account of the negligible market impact and through its incorrect determination of the relevant geographical market. They further claim that the Commission erred in determining the basic amount of the fine, the multiplication factor for the deterrent effect and the duration. In addition, it is alleged that the Commission failed to take adequate account of the mitigating circumstances and that the unduly lengthy duration of the administrative proceedings resulted in a disproportionately high fine by reason of the fact that Commission policy in regard to the level of fines had become stricter in the intervening period.

In conclusion, the applicants submit that the reduction applied by the Commission to the amount of the fine by reason of the unreasonable length of the administrative proceedings was disproportionately modest.

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