# C_2005217EN.01003001.xml

| 3.9.2005 | EN | Official Journal of the European Union | C 217/30 |
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3.9.2005

EN

Official Journal of the European Union

C 217/30

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Appeal brought on 13 July 2005 (fax: 12 July 2005) by Holcim (Deutschland) AG, formerly Alsen AG, against the judgment delivered on 21 April 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-28/03 between Holcim (Deutschland) AG, formerly Alsen AG, and the Commission of the European Communities

(Case C-282/05 P)

(2005/C 217/59)

Language of the case: German

An appeal against the judgment delivered on 21 April 2005 by the Court of First Instance of the European Communities (Third Chamber) in Case T-28/03 between Holcim (Deutschland) AG, formerly Alsen AG, and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 13 July 2005 (fax: 12 July 2005) by Holcim (Deutschland) AG, formerly Alsen AG, represented by Peter Niggemann and Frederik Wiemer, Rechtsanwälte, Freshfields Bruckhaus Deringer, Feldmühleplatz 1, D-40545 Düsseldorf.

The appellant claims that the Court should:

| 1. | Set aside the judgment of the Court of First Instance of the European Communities of 21 April 2005 in Case T-28/03 between Holcim (Deutschland) AG and the European Commission; (1) |
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1.

Set aside the judgment of the Court of First Instance of the European Communities of 21 April 2005 in Case T-28/03 between Holcim (Deutschland) AG and the European Commission; (1)

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| 2. | Order the defendant and respondent to pay to the applicant the sum of EUR 139 002,21 together with interest at an overall rate of 5,75 % for the period from 15 April 2000 until payment has been made in full; |
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2.

Order the defendant and respondent to pay to the applicant the sum of EUR 139 002,21 together with interest at an overall rate of 5,75 % for the period from 15 April 2000 until payment has been made in full;

| 3. | In the alternative, refer the case back to the Court of First Instance for a fresh decision, having regard to the interpretation of the law given by the Court of Justice; |
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3.

In the alternative, refer the case back to the Court of First Instance for a fresh decision, having regard to the interpretation of the law given by the Court of Justice;

| 4. | Order the defendant and respondent to pay all the costs of the proceedings. |
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4.

Order the defendant and respondent to pay all the costs of the proceedings.

Grounds of appeal and main arguments

The appellant relies on three grounds of appeal:

| 1. | The Court of First Instance has infringed Article 46 of the Statute of the Court of Justice by ruling that the reimbursement claim was time-barred in so far as the claims arose before 31 January 1998. Contrary to the view of that Court, the limitation period did not begin to run on provision of the guarantees, but only when the Cement judgment was given on 15 March 2000. Only after the annulment of the Cement decision could the defendant's obligation to compensate have been successfully relied on. In particular, the amount of the loss was not sufficiently clear when the guarantees were provided, since it was not foreseeable how long the annulment proceedings would last. In addition, it was not the case that a large number of daily, successive losses arose as a result of the provision of guarantees; on the contrary the loss was a single and uniform one. In the alternative, it is submitted that under the second sentence of Article 46 of the Statute of the Court of Justice the limitation period was interrupted by the lodging of annulment proceedings. |
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1.

The Court of First Instance has infringed Article 46 of the Statute of the Court of Justice by ruling that the reimbursement claim was time-barred in so far as the claims arose before 31 January 1998. Contrary to the view of that Court, the limitation period did not begin to run on provision of the guarantees, but only when the Cement judgment was given on 15 March 2000. Only after the annulment of the Cement decision could the defendant's obligation to compensate have been successfully relied on. In particular, the amount of the loss was not sufficiently clear when the guarantees were provided, since it was not foreseeable how long the annulment proceedings would last. In addition, it was not the case that a large number of daily, successive losses arose as a result of the provision of guarantees; on the contrary the loss was a single and uniform one. In the alternative, it is submitted that under the second sentence of Article 46 of the Statute of the Court of Justice the limitation period was interrupted by the lodging of annulment proceedings.

| 2. | The Court of First Instance was incorrect to examine and reject the existence of a ‘sufficiently serious breach’ under the second paragraph of Article 288 EC. First, that additional condition for a claim to reimbursement was developed by case-law only in respect of Community legislative measures and not in respect of administrative acts — such as fining decisions issued pursuant to competition rules. Even if the criterion of a 'sufficiently serious breach' were also to apply in this case, there would however be such an infringement, since the defendant had no discretion when issuing the unlawful Cement decision; the complexity of the case can then no longer matter. However, even if the complexity were to be examined in addition, the case could not be qualified as complex, at least to the extent that the applicant or its legal predecessors were affected. With respect to them, the Cement proceeding merely dealt with the examination of a small amount of evidence and the simple question whether there was a lawful export cartel. The joining of the proceedings in respect of several other undertakings into a single proceeding cannot adversely affect the applicant. |
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2.

The Court of First Instance was incorrect to examine and reject the existence of a ‘sufficiently serious breach’ under the second paragraph of Article 288 EC. First, that additional condition for a claim to reimbursement was developed by case-law only in respect of Community legislative measures and not in respect of administrative acts — such as fining decisions issued pursuant to competition rules. Even if the criterion of a 'sufficiently serious breach' were also to apply in this case, there would however be such an infringement, since the defendant had no discretion when issuing the unlawful Cement decision; the complexity of the case can then no longer matter. However, even if the complexity were to be examined in addition, the case could not be qualified as complex, at least to the extent that the applicant or its legal predecessors were affected. With respect to them, the Cement proceeding merely dealt with the examination of a small amount of evidence and the simple question whether there was a lawful export cartel. The joining of the proceedings in respect of several other undertakings into a single proceeding cannot adversely affect the applicant.

| 3. | The Court of First Instance did not correctly assess the question of the causal link between the unlawfulness and the loss. Had the defendant not imposed the unlawful fining decision on the applicant, the latter would not have incurred any losses by way of guarantee costs. The provision of bank guarantees did not break the causal link. Both forms of security — namely provisional payment of the amount of the fine and provision of guarantees — should be regarded in the same manner in terms of their legal consequences. |
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3.

The Court of First Instance did not correctly assess the question of the causal link between the unlawfulness and the loss. Had the defendant not imposed the unlawful fining decision on the applicant, the latter would not have incurred any losses by way of guarantee costs. The provision of bank guarantees did not break the causal link. Both forms of security — namely provisional payment of the amount of the fine and provision of guarantees — should be regarded in the same manner in terms of their legal consequences.

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(1)  OJ C 155 of 25.6.2005, p. 14.

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