27.1.2007

EN

Official Journal of the European Union

C 20/22

(Case T-353/06)

(2007/C 20/32)

Language of the case: Dutch

Parties

Claimant: Vermeer Infrastructuur BV (represented by: M.M. Slotboom, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—principally, annul Decision C(2006) 4090 final of the Commission of the European Communities of 13 September 2006 relating to a proceeding under Article 81 EC (Case No COMP/38.456 — Bitumen — NL); or

—in the alternative, annul Articles 1, 2(d) and 3 of the decision in so far as (i) those provisions find that Vermeer participated in the fixing of the gross price for the sale and purchase in the Netherlands of bitumen for use in road construction, and (ii) a fine and an injunction were imposed in that regard;

—in the further alternative, annul Article 2(d) of that decision in so far as that provision imposed a fine on Vermeer;

—in the yet further alternative, reduce the fine imposed on Vermeer by Article 2(d) of the decision; and

—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), by which a fine was imposed on the claimant for breach of Article 81 EC.

In support of its action the claimant alleges a breach of Article 81 EC by reason of the fact that the Commission failed to prove that the claimant had participated in the fixing of the gross prices for bitumen or that it had itself any interest whatever in such fixing. The Commission thereby wrongly concluded that the bitumen suppliers and the road construction companies had participated in one and the same breach of Article 81 EC.

The claimant submits further that the Commission has failed to demonstrate that the claimant participated in collusion between a group of bitumen suppliers and a group of major road construction companies for the purpose of fixing, on a regular basis, a smaller rebate on the gross price for other road construction companies.

Further, the claimant alleges, the Commission infringed Article 81 EC and the guidelines for the setting of fines in that it failed to prove (i) that the claimant had participated in a very serious breach of Article 81 EC and (ii) that the claimant's involvement in the alleged breach had lasted from 1 April 1994 to 15 April 2002. Consequently, in the view of the claimant, the Commission took an excessively long period into account for the purpose of calculating the fine imposed on it.

In conclusion, the claimant alleges a breach of Article 253 EC and an infringement of essential procedural requirements.