# C_2004156EN.01000303.xml

| 12.6.2004 | EN | Official Journal of the European Union | C 156/3 |
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12.6.2004

EN

Official Journal of the European Union

C 156/3

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Appeal brought on 5 April 2004 by JCB Service against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 between JCB Service and the Commission of the European Communities.

(Case C-167/04 P)

(2004/C 156/07)

An appeal against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 (1) between JCB Service and the Commission of the European Communities, was brought before the Court of Justice of the European Communities on 5 April 2004 by JCB Service, established in Rocester, Staffordshire (United Kingdom), represented by E. Morgon de Rivery, lawyer.

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The Appellant claims that the Court should:

| 1. | annul in its entirety the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities in so far as it infringes EU law by violating the Appellant's rights of defence; or |
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1.

annul in its entirety the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities in so far as it infringes EU law by violating the Appellant's rights of defence; or

| 2. | annul the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities, in so far as (i) it condemns an alleged general restriction on passive sales by authorised distributors in the United Kingdom, Ireland, France and Italy, and an alleged restriction on the sources of supply of distributors located in France and Italy, which prevented cross-supplies between distributors, and in so far as (ii) it imposes a fine on JCB Service for these alleged infringements; and |
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2.

annul the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities, in so far as (i) it condemns an alleged general restriction on passive sales by authorised distributors in the United Kingdom, Ireland, France and Italy, and an alleged restriction on the sources of supply of distributors located in France and Italy, which prevented cross-supplies between distributors, and in so far as (ii) it imposes a fine on JCB Service for these alleged infringements; and

| 3. | itself give final judgment on case T-67/01 pursuant to Article 61 of the Statute (EC) of the Court and accordingly annul, wholly or in part, the decision of the Commission dated 21 December 2000 in case COMP.F.1/35.918 (2) and, using its full jurisdiction, annul or reduce the fine of EUR 30 million imposed on JCB Service by the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities; and |
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3.

itself give final judgment on case T-67/01 pursuant to Article 61 of the Statute (EC) of the Court and accordingly annul, wholly or in part, the decision of the Commission dated 21 December 2000 in case COMP.F.1/35.918 (2) and, using its full jurisdiction, annul or reduce the fine of EUR 30 million imposed on JCB Service by the judgment of the Court of First Instance dated 13 January 2004 in case T-67/01, JCB Service against Commission of the European Communities; and

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| 4. | in all cases, order, in accordance with Article 69 of the Court's Rules of Procedure, the Commission to pay the Appellant's costs incurred both before the Court of First Instance and before this Court; |
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4.

in all cases, order, in accordance with Article 69 of the Court's Rules of Procedure, the Commission to pay the Appellant's costs incurred both before the Court of First Instance and before this Court;

| 5. | alternatively to 3., in the event that the Court does not itself decide on the case, reserve the costs and remand the case to the Court of First Instance for reconsideration in accordance with the Court's judgment. |
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5.

alternatively to 3., in the event that the Court does not itself decide on the case, reserve the costs and remand the case to the Court of First Instance for reconsideration in accordance with the Court's judgment.

Pleas in law and main arguments:

First plea in law

The Appellant submits that the Court of First Instance (‘CFI’) infringed Community law by refusing to address the claim that the Appellant's rights of defence had been abused. First, the Appellant contends that its rights of defence were breached due to the excessive duration of the procedure before the Commission, which lasted for 27 years (from the date of the notification to the date of the Commission Decision), preventing it from exercising its rights as a notifying party. The CFI erred in law by ignoring the consequences of such violation on the Appellant's ability to effectively defend itself. Second, the Appellant contends that its right to a presumption of innocence was also violated due to the CFI's failure to take into consideration certain exculpatory pieces of evidence, to apply the method of faisceau d'indices (bundle of indicators) in order to assess the relevant pieces of evidence, and to provide adequate and impartial reasoning.

Second plea in law

The Appeallant contends that the CFI infringed Article 81 EC by condemning the Appellant (i) for imposing a general prohibition on passive sales on its distributors in the United Kingdom, Ireland, France and Italy, and (ii) for restricting the sources of supply of its distributors in France and Italy, on the basis of an erroneous legal characterisation of the facts, distortion of evidence and erroneous application of applicable EC competition rules. This in turn engendered an application of the prohibition laid down in Article 81 EC that is clearly inconsistent with the letter and the purpose of said provision.

Third plea in law

This concerns the computation of the fine. Here, the Appellant contends that the CFI infringed Article 15 of Regulation No 17 by violating major fundamental principles applicable to the ordering of the fine, i.e., the principle of sound administration, the legitimate expectations of private parties and the principle of equal punishment, as well as by incorrectly assessing the gravity and the duration of the alleged infringements and both the attenuating and aggravating circumstances.

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(1)  OJ C 186, 30.06.2001, p. 9.

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(2)  OJ L 69, 12.03.2002, p. 1.

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