Notice for the OJ

 

Action brought on 27 September 2002 by Koninklijke BAM NBM N.V. v Commission of the European Communities.

    (Case T-295/02)

    (Language of the case: Dutch)

An action against Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 September 2002 by Koninklijke BAM NBM N.V., whose registered office is in the Hague (Netherlands), represented by E.H. Pijnacker Hordijk and G.W.H. Corstens.

The applicant claims that the Court should:

1.Annul the Commission Decision of 3 September 2002 pursuant to Article 9(3) of Regulation (EEC) No 4064/89 in Case COMP/M.2881-BAM NMB/HBG;

2Order the Commission to pay the costs.

Plea in law and main arguments

The applicant notified the Commission of its planned acquisition of the Hollandsche Beton Group N.V. Both undertakings are active in the construction sector and in related markets.

By the contested decision, the Commission, at the request of the Netherlands Minister for economic affairs, referred the case to the Netherlands competition authority as regards the construction sector and the regional asphalt markets. As regards the other activities of the applicant and of Hollandsche Beton Group, the planned concentration was approved by a Commission decision of the same date pursuant to Article 6(1)(b) of Regulation No 4064/89. ¹

In support of its application the applicant submits, first, that in its referral decision the Commission made a manifestly incorrect appraisal of the facts. According to the applicant, the Commission errs in finding that the applicant and Hollandsche Beton Group N.V. have a joint market share of more than 25% on the relevant market for major works.

The applicant also submits that the contested decision infringes Article 9(3) of Regulation No 4064/89. The Commission misappraises the effects of the concentration on the civil and utility construction sectors, on the one hand, and the earth-moving, hydraulic engineering and road construction sectors on the other hand. In particular the market shares of the applicant and of Hollandsche Beton Group for major projects in those sectors are much smaller than the Commission concludes. Projects of that kind are implemented by various undertakings which work together on one project. According to the applicant, the Commission erred in completely attributing to the applicant and Hollandsche Beton Group the market shares of those groups of undertakings in which they took part, without taking into account the other undertakings cooperating with them.

The applicant also claims infringement of Article 9(3) of Regulation No 4064/89 concerning the market for the production of asphalt. The Commission omitted to indicate the specific regional markets on which there would be negative consequences for competition.

Furthermore, the applicant claims infringement of the principle of the right to a fair hearing and the obligation to state reasons. The Commission bases its finding concerning the consequences of the concentration for the civil and utility construction sectors, on the one hand, and the earth-moving, hydraulic engineering and road construction sectors, on the other, on the results of a survey. The applicant states that it was never able to inspect that information and was unable to comment on it.

Finally, the applicant claims infringement of the obligation to state reasons with regard to the markets for the production of asphalt.

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¹ - Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) (corrected version published in OJ 1990 L 257, p. 13).