# C_2004262EN.01003002.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/30 |
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23.10.2004

EN

Official Journal of the European Union

C 262/30

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Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities

(Case T-270/04)

(2004/C 262/59)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 July 2004 by Bic Deutschland GmbH & Co OHG, established in Eschborn (Germany), represented by Dominique Voillemot, lawyer.

The applicant claims that the Court should:

| — | annul the Commission Decision of 3 May 2004 seeking payment from it of the fine which it imposed on the company Tipp-Ex by its decision of 10 July 1987 with interest calculated once and for all to 28 May 2004 and deciding to put into effect the bank guarantee provided by Deutsche Bank AG Frankfurt am Main; |
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annul the Commission Decision of 3 May 2004 seeking payment from it of the fine which it imposed on the company Tipp-Ex by its decision of 10 July 1987 with interest calculated once and for all to 28 May 2004 and deciding to put into effect the bank guarantee provided by Deutsche Bank AG Frankfurt am Main;

| — | order the defendant to pay all the costs. |
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order the defendant to pay all the costs.

Pleas in law and main arguments:

The applicant company is the successor in title to Tipp-Ex following the repurchase on 1 January 1997 and the subsequent internal restructuring of the BIC group. Tipp-Ex was the addressee of Decision No 87/406/EEC of 10 July 1987, by which the Commission imposed upon it a fine of ECU 400 000 for breach of Community competition rules.

Tipp-Ex had brought an action against that decision and provided the Commission with a bank guarantee payable on first demand to guarantee payment of the fine plus interest at 8 %. In accordance with usual practice in that regard, that guarantee was to be honoured only upon a written demand from the Commission, with a certified copy of the Court's judgment. On 8 February 1990, (1) the Court dismissed Tipp-Ex's action and upheld the decision of 10 July 1987.

1

It was only by letter of 12 February 2004 that the Commission requested payment from BIC of the amount of EUR 923 747.94, including the amount of the fine of EUR 400 000 and the additional amount of interest (EUR 523 747.94).

Following an exchange of correspondence between the applicant and the Commission, the Commission, by the contested decision, rejected BIC's arguments, based in particular on the rule of limitation set out in Article 4(1) of Regulation No 2988/74 (2) and demanded payment of the definitive amount of the fine (EUR 931 726.02).

2

In support of its claims, the applicant submits that:

| — | there was a breach of Article 4(1) of the abovementioned Regulation No 2988/74 which does not permit execution of a decision imposing a fine after a period of five years has elapsed. It considers, in that regard, that the limitation period in question was neither interrupted nor suspended; |
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there was a breach of Article 4(1) of the abovementioned Regulation No 2988/74 which does not permit execution of a decision imposing a fine after a period of five years has elapsed. It considers, in that regard, that the limitation period in question was neither interrupted nor suspended;

| — | there was a manifest error of assessment regarding the functioning of the bank guarantee payable on first demand. The applicant contends, in that regard, on one hand, that the provision of such a guarantee does not constitute payment of the fine and that the mere holding of it does not, of itself, entail an obligation to make payment and, in addition, that the putting into effect of the bank guarantee requires an enforcement measure in accordance with Regulation No 2988/74. In accordance with the wording of the guarantee in question, that enforcement measure should consist of an express demand made by the Commission to Deutsche Bank, together with a certified copy of the judgment of the Court of Justice, sent by recorded delivery letter. |
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there was a manifest error of assessment regarding the functioning of the bank guarantee payable on first demand. The applicant contends, in that regard, on one hand, that the provision of such a guarantee does not constitute payment of the fine and that the mere holding of it does not, of itself, entail an obligation to make payment and, in addition, that the putting into effect of the bank guarantee requires an enforcement measure in accordance with Regulation No 2988/74. In accordance with the wording of the guarantee in question, that enforcement measure should consist of an express demand made by the Commission to Deutsche Bank, together with a certified copy of the judgment of the Court of Justice, sent by recorded delivery letter.

Furthermore, the applicant submits that there was a breach of the principle of protection of legitimate expectations and, in the alternative, a breach of the general principle that measures should be taken within a reasonable time.

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(1)  Case C-279/98 Tipp-Ex v Commission [1990] ECR I-261.

1

(2)  Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ L 319, 29.11.1974, p. 1).

2

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