27.1.2007

EN

Official Journal of the European Union

C 20/20

(Case T-348/06)

(2007/C 20/28)

Language of the case: English

Parties

Applicant: Total Nederland NV (Voorburg, Netherlands) (represented 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 — Nederland) 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 infringement;

(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 infringement

—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 involvement in the practice;

—order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the partial annulment of Commission Decision C(2006) 4090 final of 13 September 2006 in Case COMP/F/38.456 — Bitumen — NL, by which the Commission found that the applicant, 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 participating road builders and a smaller maximum rebate on the gross price for other road builders.

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