Case T-57/01: Action brought on 12 March 2001 by Solvay SA against the Commission of the European Communities
Date: 2001-06-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, fine, infringement of EU law, restriction on competition

2.6.2001

EN

Official Journal of the European Communities

C 161/21

Pleas in law and main arguments

Action brought on 12 March 2001 by Solvay SA against
the Commission of the European Communities

The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feedingstuff additive
ToyoCerin, and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Articles 3 and following of Council Directive 70/524/EEC (1).

The applicant first applied for a Community authorisation in
respect of ToyoCerin for all categories of animal in 1991, and
a temporary authorisation for ToyoCerin in respect of the
following categories of animal was granted in 1994: rearing
pigs, piglets and sows. That temporary authorisation was
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation
(EC) No 1411/1999 (2). The applicant claims that that tempor-
ary authorisation was not extended and that the applicant’s
request for unlimited authorisation of ToyoCerin in respect of
rearing pigs, piglets and sows has not been determined.

The action is directed against the Commission’s decision to
dismiss the applicant’s request for unlimited authorisation in
respect of ToyoCerin for use on swine, and for an extension of
the temporary authorisation in respect of use of ToyoCerin on
other types of animal. The applicant claims that it is entitled
to be awarded the authorisation it is requesting pursuant to
Article 3(a) of Directive 70/524/EEC, and that the Com-
mission’s decision not to propose to the Standing Committee
for Feedingstuffs that such authorisation be granted, and to
dismiss the applicant’s request, infringes that provision.

Furthermore, the applicant has legitimate expectations in the
present case, pursuant to which it was entitled to assume that
ToyoCerin would be granted fresh authorisation for categories
of animal other than swine before the temporary authorisation
expired. Finally, the procedure followed by the defendant
infringes the provisions relating to the time limits within
which the authorisation procedure is to be carried out and
the defendant’s contested decision infringes the principle of
proportionality and the requirement to provide reasons in
Directive 70/524/EEC.

(1) Council Directive 70/524/EEC of 23 November 1970 concerning
additives in feeding stuffs (OJ L 270, p. 1), most recently amended
by Commission Regulation (EC) No 45/1999 of 11 November
1999 (OJ L 6, p. 3).

(2) Commission Regulation (EC) No 1411/1999 of 29 June 1999
concerning the authorisation of new additives and new additive
uses in feedingstuffs (OJ L 164, p. 56).

(Case T-57/01)

(2001/C 161/45)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 12 March
2001 by Solvay SA, established in Brussels, represented by
Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
and Anne Vallery, Lawyers.

The applicant claims that the Court of First Instance should:

— find that the action taken against it was time-barred;

— in any event, annul

the Commission Decision of
13 December 2000 relating to a procedure under
Article 82 of the Treaty (COMP/33.133-C: Soda-ash —
Solvay);

— find that the power to impose fines is time-barred;

— in any event, annul Article 2 of the contested decision, in
so far as it imposes a fine of EUR 20 million on the
applicant;

— declare that no fine should be imposed on the applicant
or, at the very least, that the fine should be substantially
reduced;

— order the Commission to pay the costs.

Contentions and principal arguments adduced in support

The applicant is a company incorporated under Belgian law,
which operates in the soda-ash sector through marketing
outlets in nine countries in Europe.

On 19 December 1990, the Commission adopted Decision
91/299/EEC (1) finding that the applicant held a dominant
position on the soda-ash market in continental Europe and
had abused that position, and imposed on the applicant a fine
of ECU 20 million. An action for the annulment of that initial
decision was brought before the Court of First Instance. By
Instance
judgment of 29 June 1995,
annulled the decision (2). The Commission’s appeal against that
judgment was dismissed by the Court (3).

the Court of First

C 161/22

EN

Official Journal of the European Communities

2.6.2001

On 13 December 2000, the Commission adopted a decision (4)
finding that the applicant had infringed Article 86 of the EEC
Treaty by acting in a manner intended to exclude or to limit
competition very severely, by, inter alia, concluding agreements
with customers requiring them to obtain supplies from the
applicant. In that decision, the Commission imposed on the
applicant a fine of EUR 20 million.

As to the substance, the applicant submits that the Commission
infringed Article 82 EC by the manner in which it defined the
the real
geographical market without
conditions of competition and that the applicant did not hold
a dominant position within the meaning of that article on the
soda-ash market.

taking account of

The applicant seeks the annulment of that decision.

In support of its application, the applicant claims that the
Commission did not take account of the passage of time.
The five-year limitation period, which was suspended while
proceedings for annulment were pending before the Court of
in the
Instance, ended in January 2000. Therefore,
First
applicant’s view, the Commission adopted a decision at a time
when its power to impose fines had been time-barred for many
months. The applicant also considers that the Commission
infringed the applicant’s right to have a decision against it
taken within a reasonable period, in view of the fact that the
conduct imputed to the applicant occurred from 1983 to the
end of 1990.

According to the applicant, a decision was adopted before a
meeting of the members of the Commission. The applicant
alleges infringement of the principle of collegiality and of the
principle of legal certainty.

Moreover, in its view, the contested decision infringed essential
procedural requirements which should have been fulfilled
before its adoption, the applicant’s rights of defence and its
right
to be heard. The Commission cannot rely on the
administrative procedure which preceded the adoption of the
decision of December 1990, since that procedure was vitiated
in numerous ways and the applicant should have been granted
a hearing allowing it to submit its observations.

According to the applicant, the Commission did not reopen
the administrative procedure which preceded adoption of
Decision 91/299 and did not receive a fresh statement of
objections and, therefore, was unable to respond to those
objections. By readopting, practically word for word, a decision
dating from 1990, disregarding, amongst things, the passage
of time, the contradictory positions taken by the Commission
on matters essential to appraisal of the case and evidence in
in the intervening
defence put
period, the Commission infringed the principles of sound
administration, impartial examination and proportionality.

forward by the applicant

As regards the Commission’s view that the applicant resorted
to various practices all designed to bring about exclusion, the
applicant contends that that view is not supported by the facts
and is wrong in law. Furthermore, the Commission did not
give a proper statement of its reasons for its decision.

the applicant seeks annulment of
It contends that

the
In the alternative,
fines imposed or reduction thereof.
the
Commission’s power to impose fines on the applicant had
been extinguished by the time the contested decision was
adopted, and therefore the Commission infringed Article 15
of Regulation No 17. Moreover, it did not properly assess the
gravity and duration of the infringement and failed to take
account of extenuating circumstances. Finally, the amount of
the fine is excessive and disproportionate and takes no account
of the passage of time.

(1) Commission Decision 91/299/EEC of 19.12.1990 (IV/33.133-C:

Soda-ash — Solvay), OJ 1991 L 152, p. 21.

(2) Case T-32/91 Solvay v Commission [1995] ECR II-1825.
(3) Judgment of 6.4.2000 in Joined Cases C-287/95 P and C-288/95

P Commission v Solvay [2000] ECR I-2391.

(4) Commission Decision of 13.12.2000 relating to a procedure

under Article 82 EC (COMP/33.133-C: Soda-ash — Solvay.

Action brought on 12 March 2001 by Solvay SA against
the Commission of the European Communities

(Case T-58/01)

(2001/C 161/46)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 12 March
2001 by Solvay SA, established in Brussels, represented by
Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
and Anne Vallery, Lawyers.