Judgments nº T-357/06 of The General Court, September 27, 2012

• Resolution Date: September 27, 2012
• Issuing Organization: The General Court
• Decision Number: T-357/06

(Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction on competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Rights of the defence — Fine — Aggravating circumstances — Role of instigator and leader — Absence of cooperation — Commission’s powers of investigation — Right to the assistance of a lawyer — Misuse of powers — Calculation of the amount of the fines — Duration of the infringement — Unlimited jurisdiction)

In Case T‑357/06,

Koninklijke Wegenbouw Stevin BV, established in Utrecht (Netherlands), represented initially by E. Pijnacker Hordijk and Y. de Vries, and subsequently by Pijnacker Hordijk and X. Reintjes, lawyers,

applicant,

v

European Commission, represented by A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, acting as Agents, assisted initially by L. Gyselen, F. Tuytschaever and F. Wijckmans, and subsequently by Gyselen, lawyers,

defendant,

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Sixth Chamber),

composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 26 May 2011,

gives the following

Judgment

Facts

I – The applicant

1 Koninklijke Volker Wessels Stevin is a Netherlands construction group consisting of more than a hundred operating companies. The parent company, Koninklijke Volker Wessels Stevin NV (‘KVWS’), operates in the road construction sector through Volker Wessels Stevin Verkeersinfra BV and through the applicant, its subsidiary, Koninklijke Wegenbouw Stevin BV, which is responsible on behalf of the whole group for the negotiations concerning and for the purchasing of bitumen for the production of asphalt in the Netherlands. During the period of the infringement, KVWS held all the applicant’s capital, through the holding companies Volker Wessels Stevin Infra BV and Volker Wessels Stevin Verkeersinfra.

II – Administrative procedure

2 By letter of 20 June 2002, British Petroleum (‘BP’) informed the Commission of the European Communities of the presumed existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the Leniency Notice’).

3 On 1 October 2002, the Commission carried out surprise inspections at the premises of, in particular, the applicant. During that inspection, the applicant first refused to allow the Commission’s staff to enter the building until its external lawyers arrived and then denied them access to the office of one of its directors. The Commission therefore requested the assistance of the national authorities in order to carry out those investigations. The Commission’s staff drew up two reports on those incidents on 3 October 2002, which were sent to the applicant as part of the access to the file granted by the Commission on 19 October 2004.

4 The Commission sent requests for information to several companies, including the applicant, on 30 June 2003, to which the latter replied on 12 September 2003. On 10 February 2004, the Commission sent a further request for information, to which KVWS replied on 2 March 2004.

5 On 12 September 2003, Kuwait Petroleum submitted an application under the Leniency Notice, to which a corporate statement was attached. Shell Nederland Verkoopmaatschappij BV (‘SNV’) also submitted such an application on 10 October 2003, accompanied by a corporate statement and a statement by a retired former employee. In addition, in their replies to the statement of objections, Total and Nynas requested that their replies to the Commission’s request for information be taken into account under the Leniency Notice.

6 On 18 October 2004, the Commission initiated a proceeding and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including KVWS, the applicant and Volker Wessels Stevin Infra.

7 Following the hearing of the companies concerned on 15 and 16 June 2005, Nynas and Kuwait Petroleum provided, on 28 and 30 June 2005 respectively, clarifications with regard to certain statements used by the Commission in the statement of objections and challenged during the hearing by other companies, which were forwarded to all the parties. The applicant responded to those documents on 26 August 2005. Similarly, it replied on 28 June 2005 to a request for information which followed on from an oral question put by the Commission at the hearing, and that reply was forwarded to all the parties on 24 May 2006. On 25 January 2006, the Commission sent a letter to all the parties, in order to provide explanations regarding a passage in the statement of objections relating to price fixing, to which the applicant replied on 16 February 2006. Finally, on 24 May 2006, the Commission forwarded to the applicant all the replies from the other undertakings to the statement of objections which it was intending to use as evidence against it, and the applicant submitted its comments on those documents on 12 June 2006.

III – Contested decision

8 On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands), ‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40), and which was notified to the applicant on 25 September 2006.

9 The Commission stated that the companies to which the contested decision was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods concerned, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for the road builders participating in the cartel (‘the large builders’ or ‘the W5’) and a smaller maximum rebate on the gross price for other road builders (‘the other builders’ or ‘the small builders’).

10 A fine of EUR 27.36 million was imposed on the applicant, jointly and severally with KVWS, for having committed that infringement for the period from 1 April 1994 to 15 April 2002.

11 As regards the calculation of the amount of the fines, the Commission described the infringement as very serious, given its nature, even though the relevant geographic market was limited (recital 316 of the contested decision).

12 In order to take account of the specific weight of the conduct of each of the undertakings involved in the cartel and of its real impact on competition, the Commission made a distinction between the undertakings concerned according to their relative importance in the relevant market, measured by their market shares, and grouped them into six categories.

13 On the basis of the foregoing considerations, the Commission applied a starting amount of EUR 9.5 million to the applicant (recital 322 of the contested decision). It considered that it was not necessary to apply a multiplier to it in order to ensure a sufficient deterrent effect of the fine, in view of the size and turnover of the Koninklijke Volker Wessels Stevin group (recital 323 of the contested decision).

14 As regards the duration of the infringement, the Commission took the view that the applicant had committed an infringement of long duration, namely an infringement of more than five years, and took as a basis a total period of eight years, from 1 April 1994 to 15 April 2002, thus increasing the starting amount by 80% (recital 326 of the contested decision). The basic amount of the fine, determined according to the gravity and duration of the infringement, was therefore fixed at EUR 17.1 million for the applicant (recital 335 of the contested decision).

15 The Commission applied several aggravating circumstances with regard to the applicant. In the first place, it took the view that, since the applicant was guilty of refusal to cooperate and of attempts at obstruction during the investigations carried out at its premises on 1 October 2002, an increase of 10% in the basic amount of the fine should be applied to it (recitals 340 and 341 of the contested decision). In the second place, it considered that the applicant had played the role of instigator and leader of the cartel, justifying a further increase of 50% in the basic amount of the fine (recitals 342 to 349 of the contested decision).

16 Moreover, the Commission considered that no attenuating circumstances could be found with respect to the applicant (recitals 350 to 360 of the contested decision).

Procedure and forms of order sought by the parties

17 By application lodged at the Registry of the Court on 5 December 2006, the applicant brought the present action.

18 Acting upon a report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to lodge certain documents and put questions to them. The parties complied with those requests within the prescribed period.

19 The parties presented oral argument and answered questions put to them by the Court at the hearing on 26 May 2011.

20 As a member of the Sixth Chamber was unable to sit, the President of the Court designated himself to complete the Chamber pursuant to Article 32(3) of the...