9.3.2013

Official Journal of the European Union

C 71/6

Appeal brought on 13 December 2012 by Koninklijke Wegenbouw Stevin BV against the judgment delivered by the General Court (Sixth Chamber) on 27 September 2012 in Case T-357/06 Koninklijke Wegenbouw Stevin v Commission

(Case C-586/12 P)

2013/C 71/11

Language of the case: Dutch

Parties

Appellant: Koninklijke Wegenbouw Stevin BV (represented by: E. Pijnacker Hordijk, advocaat)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—	partially set aside the judgment under appeal, in so far as the General Court held therein that the Commission demonstrated to the requisite legal standard that KWS acted as leader in the cartel established by the Commission;

—	partially annul Article 1(j) of the contested decision, (1) in so far as the Commission imposed a fine of EUR 27.36 million on KWS;

—	set a new fine for KWS in the amount of ;

—	order the Commission to pay a part of KWS’s procedural costs at first instance and in this appeal, to be determined more precisely by the Court of Justice.

Pleas in law and main arguments

The appellant puts forward two pleas in support of its appeal.

First plea

In its first plea, the appellant claims that the General Court infringed the principle of equal treatment and fundamental requirements relating to the consistency of judicial decisions in that, in the judgment under appeal, it used the same evidence, without stating any reasons, let alone any convincing reasons, in a contradictory manner against the different applicants, KWS and Shell Nederland Verkoop Maatschappij B.V. (‘SNV’, whose action was the subject of the judgment of the General Court of 27 September 2012 in Case T-343/06), whereas, according to the contested decision, KWS and SNV together had the same role in the context of the cartel arrangements.

—	The General Court’s assessment of the alleged instigating and leadership roles of KWS and of SNV should be seen in conjunction with one another: the Commission found in the decision that KWS and SNV were jointly the driving force behind the cartel.

—	The probative value of a number of items of evidence relied upon by the Commission against KWS and SNV was assessed by the Court in a contradictory manner which is legally unacceptable.

—	On the basis of the foregoing, the finding that KWS was alone in having a leadership role in the cartel established between bitumen suppliers and road builders is untenable.

Second plea

By its second plea, the appellant claims that the General Court infringed the prohibition on taking arbitrary measures, the principle of equal treatment and the principle of proportionality by considering in the judgment under appeal that the 50 % increase in the fine imposed on KWS on the basis of the existence of an instigating and leadership role could be maintained, even though the General Court had established that there were insufficient grounds for finding that KWS had an instigating role.

—	If the finding that KWS alone can be attributed a leadership role cannot be upheld, that also applies in respect of the increase in the fine.

—

By maintaining the increase in the fine set by the Commission, even though the Commission did not put forward sufficient evidence in respect of one of the two circumstances justifying an increase in the fine, the General Court ‘rewards’ the Commission for its careless assessment in the contested decision.

—	The principle of equal treatment and of proportionality preclude the General Court from maintaining the 50 % increase in KWS’s fine (in full moreover), whereas it annulled that increase in full in the parallel proceedings in Case T-343/06 as regards SNV and Others.

—	On the basis of the foregoing, the increase in fine as determined for KWS cannot be maintained.

(1) 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)).