Case T-58/01: 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, infringement of EU law, inter-company agreement, market-sharing agreement

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.

2.6.2001

EN

Official Journal of the European Communities

C 161/23

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 81 of the Treaty (COMP/33.133-B: Soda-ash —
Solvay, CFK);

— 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 3 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
91/298/EEC (1) finding that the applicant had participated in a
market-sharing agreement under which it guaranteed CFK a
minimum annual tonnage of soda-ash sales in Germany and
compensated CFK for any shortfall by purchasing from it the
tonnages necessary to bring its sales up to the guaranteed
minimum, and imposed on the applicant a fine of ECU 3 milli-
on. Proceedings for the annulment of that initial decision were
brought before the Court of First Instance. By judgment of
29 June 1995,
Instance annulled the
decision (2). The Commission’s appeal against that judgment
was dismissed by the Court of Justice. (3)

the Court of First

On the 13 December 2000, the Commission adopted a
decision (4), in which the infringements already referred to in
the initial decision were imputed to the applicant. In that
decision, the Commission imposed a fine on the applicant of
EUR 3 million.

As regards the alleged infringement which, according to the
Commission extended from 1987 to at least the end of 1990,
the applicant contends that the Commission did not give
reasons to show, and did not show, that the alleged agreement
was capable of appreciably affecting trade between the Member
States and that the infringement of Article 81 EC was not
established.

(1) Commission Decision 91/298/EEC of 19.12.1990 (IV/33.133-B:

Soda-ash — Solvay, CFK), OJ L 152, 1991, p. 16.
(2) Case T-31/91 Solvay v Commission [1995] II-1821.
(3) 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 81 EC (COMP/33.133-B: Soda-ash — Solvay, CFK).

Action brought on 22 March 2001 by Spyridon de
Athanassios Pappas against the Committee of the Regions
of the European Union

(Case T-73/01)

(2001/C 161/47)

(Language of the case: French)

An action against the Committee of the Regions of the
European Union was brought before the Court of First Instance
of the European Communities on 22 March 2001 by Spyridon
de Athanassios Pappas, residing in Brussels, represented by
Marc-Albert Lucas, Lawyer.

The applicant claims that the Court of First Instance should:

— annul the decision of 13 June 2000 of the Bureau of the
Committee of the Regions of the European Union to
appoint a third party as Secretary-General of the Com-
mittee of the Regions;

— annul the relevant decision of 13 June 2000 of the Bureau
of the Committee of the Regions of the European Union
to reject the applicant’s application for that post, which
was notified to him by letter of 22 June 2000 from the
President of the Bureau;

The applicant seeks annulment of that decision relying, for the
most part, on the arguments put forward in Case T-57/01.

— order the Committee of the Regions to pay the costs.