27.1.2007

EN

Official Journal of the European Union

C 20/32

(Case T-384/06)

(2007/C 20/49)

Language of the case: English

Parties

Applicants: IBP Ltd (Tipton, United Kingdom) and International Building Products France SA (Sartrouville, France) (represented by: M. Clough, QC, and A. Aldred, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

—Annul the decision insofar as it relates to the applicants in respect of the period from 23 November 2001 to 1 April 2004;

—in any event, cancel the fine imposed on the applicants or reduce such fine by the amount considered appropriate by the Court in all the circumstances;

—order the Commission to pay the applicants' costs.

Pleas in law and main arguments

The applicants seek the partial annulment of Commission Decision C(2006) 4180 final of 20 September 2006 in Case COMP/F-1/38.121 — Fittings, by which the Commission found that the applicants, together with other undertakings, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area by fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information.

In support of their application, the applicants submit that the Commission infringed Article 81 EC by concluding that the applicants were party to a single, complex and continuous infringement in breach of Article 81 EC during the period from 23 November 2001 to 1 April 2004, when the evidence before it does not, according to the applicants, support that finding.

Furthermore, the applicants allege that the Commission, contrary to Article 253 EC, has not provided reasons, or has provided insufficient reasons, for its findings.

Moreover, the applicants claim that the Commission has infringed their right to be heard by finding infringements without previously stating the case against the applicants in any statement of objections or allowing the applicants to comment prior to the adoption of the contested decision.

As for the cancellation or reduction of the fine imposed on the applicants, they submit that:

a)the Commission failed to apply Article 15(2) of Regulation No 17 (1), Article 23(2) of Regulation No 1/2003 (2) and Article 5(a) of the 1998 Guidelines on the method of setting fines (3);

b)the Commission has fined International Building Products France the sum of EUR 5.63 million twice for the same conduct;

c)the Commission has misapplied the 1998 Guidelines on the method of setting fines; and

d)the Commission has misapplied the 1996 Leniency Notice (4).

Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

Commission Notice of 14 January 1998 entitled ‘Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty’ (OJ 1998 C 9, p. 3).

Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4).