Action brought on 5 December 2006 - Wegenbouwmaatschappij J. Heijmans v Commission

(Case T-358/06)

Language of the case: Dutch

Parties

Claimant: Wegenbouwmaatschappij J. Heijmans B.V. (represented by: M.F.A.M. Smeets and A.M. van den Oord, lawyers)

Defendant: Commission of the European Communities

Form of order sought

set aside, in whole or in part, the decision addressed to Heijmans N.V. and Heijmans Infrastructuur B.V.;

set aside or reduce the fine imposed on Heijmans N.V. and Heijmans Infrastructuur B.V.;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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). Although the decision is not addressed to the claimant, it takes the view that it is directly and individually concerned by it inasmuch as it is mentioned in the decision as being part of the Heijmans Group and must expect, by reason of the decision, to be held liable in regard to the conduct in issue.

In support of its action, the claimant first of all submits that there has been a breach of Article 81 EC and of Articles 2, 7 and 23(2) of Regulation No 1/2003 in that the Commission wrongly assumed that the Netherlands market for bitumen used in road construction constituted the relevant economic context for the appraisal of the evidence against Heijmans Infrastructuur B.V. The claimant further submits that the Commission also wrongly assumed that Heijmans Infrastructuur B.V. was part of a permanent cartel of road construction undertakings operating with regard to the purchase of bitumen for road construction and, in that capacity, colluded with the suppliers of bitumen in the Netherlands with a view to restricting competition. Lastly, according to the claimant, the Commission unjustly failed, on the basis of the guidelines on horizontal cooperation, to check solely the consequences of the participation of Heijmans Infrastructuur B.V.in that collusion. ¹

Second, the claimant alleges that there has been a breach of Article 81 EC and of Articles 11 and 16 of Regulation No 1/2003, as well as infringement of the duty of care, the general principles of sound administration, the principle of equality and the rights of the defence by reason of the fact that the Commission disregarded the reasoned substantive and procedural defence submissions made by Heijmans Infrastructuur B.V. and Wegenbouwmaatschappij J. Heijmans B.V. during the administrative procedure as being an 'innocent interpretation of the events'.

Third, the claimant alleges infringement of the principle that reasons must be given in that the decision is unclear or ambiguous in certain vital sections.

By way of alternative submission, the claimant argues the Commission has adduced no, or insufficient, evidence to substantiate the claim that Heijmans Infrastructuur B.V. participated in the alleged infringement over the entire period thereof.

Also in the alternative, the claimant submits that the Commission incorrectly assessed the gravity and scope of the infringement. It argues that Heijmans Infrastructuur B.V. played merely a minor role on the relevant market.

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¹ - Guidelines on the applicability of Article 81 of the EC Treaty to horizontal cooperation agreements (text with EEA relevance) (OJ 2001 C 3, p. 2).