Case T-314/01: Action brought on 17 December 2001 by Coöperatieve Verkoop- en Productievereniging van Aardappelmeel en Derivaten "AVEBE" B.A. against the Commission of the European Communities
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, action for annulment (EU), chemical industry, economic concentration

C 68/12

EN

Official Journal of the European Communities

16.3.2002

Action brought on 13 December 2001 by Jungbunzlauer
AG against the Commission of the European Com-
munities

(Case T-312/01)

(2002/C 68/22)

(Language of the case: German)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 13 December 2001 by Jung-
bunzlauer AG, of Basle, represented by Rainer Bechtold,
Matthias Karl and Ulrich Soltész, lawyers.

The applicant claims that the Court should:

— annul the Commission’s decision of 2 October 2001

(Case COM/E-1/36.756 — Sodium gluconate);

— alternatively, reduce the fine imposed in Article 3 of the

decision;

— order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

By the contested decision, the Commission found that the
applicant and five other undertakings had participated in a
continuous and/or concerted practice in the sodium gluconate
sector and had thereby infringed Article 81(1) EC. Fines were
imposed on those undertakings.

The applicant is contesting that decision and asserts that it was
directed to the wrong addressee,
inasmuch as it was only
Jungbunzlauer Ladenburg GmbH, an associate company of the
applicant, which had participated in the acts contrary to cartel
law described in the decision.

With regard to the fine imposed, the applicant asserts, inter
alia, that the Commission, when fixing the amount of the fine,
failed to take account of the size of the undertakings concerned,
and likewise failed to pay sufficient regard to the economic
significance of the infringement. The Commission thereby
violated the principle of proportionality, its own guidelines
and its own practice. Furthermore, it committed an error of
assessment by refusing to take into account the fact that fines
had already been imposed in the USA and Canada in respect
of the same facts.

Finally, the applicant claims that its right to be heard in
accordance with the law has been violated, since the Com-
mission did not give it access to the entire investigation file. In
addition, the protracted length of the procedure had a twofold
effect on the content of the decision, inasmuch as the latest
turnover figures were taken as the applicable basis and because
the decision was not issued until after there had been a
substantial tightening of the Commission’s practice in the
imposition of fines, which significantly prejudiced the appli-
cant’s position.

Action brought on 17 December 2001 by Coöperatieve
Verkoop- en Productievereniging van Aardappelmeel en
Derivaten ‘AVEBE’ B.A. against the Commission of the
European Communities

(Case T-314/01)

(2002/C 68/23)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 17 December 2001 by Coöperatie-
ve Verkoop- en Productievereniging van Aardappelmeel en
Derivaten ‘AVEBE’ B.A., established at Veendam (Netherlands),
represented by Cornelis Titus Dekker, with an address for
service in Luxembourg.

The applicant claims that the Commission wrongly assumed
that the infringement did not cease until 1995. Moreover, the
Commission has not conclusively shown that the applicant, or
its associated company, had played the role of ‘ringleader’ —
on which ground the basic amount of the fine was wrongly
increased by 50 %.

The applicant claims that the Court should:

— annul

the Commission’s decision C(2001) 2931 of

2 October 2001;

— order the Commission to pay the costs.

16.3.2002

EN

Official Journal of the European Communities

C 68/13

Pleas in law and main arguments

The applicant has since 1993 been the sole owner of Glucona
B.V., a company producing sodium gluconate. Glucona had
previously been a joint venture between the applicant and its
then partner. Glucona was involved in a cartel concerning the
sale of sodium gluconate. The contested decision orders the
applicant to pay a fine in that regard.

its claim,

In support of
the applicant pleads, primarily,
failure to comply with essential procedural requirements. In
particular, it asserts that its rights of defence have been violated
and that an insufficient statement of reasons was given. Thus,
the applicant was not given an opportunity to comment on
the statements made about the applicant by another party
involved in the investigation.

The applicant further pleads infringement of Article 81(1) EC
and Article 15(2) of Regulation No 17/62 (1). According to the
applicant, the conduct of Glucona during the period from
1987 and 1993 cannot be attributed to it. During that period
the applicant’s partner in Glucona was responsible for sales
policy and the applicant itself had no information whatever in
that regard. It was not until 1993, when the applicant obtained
total control over Glucona, that it was made aware of the
cartel and was thus placed in a position of responsibility
therefor.

the applicant pleads violation of

Lastly,
the principle of
proportionality, inasmuch as the Commission failed to take
account of the purely passive role played by the applicant in
the cartel until 1993.

on 17 December 2001 by Omar Mohamed Othman, represent-
ed by Ms Fiona Lindsley of Birnberg Peirce & Partners, London
(United Kingdom)

The applicant claims that the Court should:

— Annul Council Regulation 467/2001 and Commission

Regulation 2062/2001.

Pleas in law and main arguments

The applicant in the present case, a citizen of Jordan and
lawfully residing in the United Kingdom, challenges Council
Regulation (EC) No 467/2001 and Regulation (EC)
No 2062/2001 of 19 October 2001, amending, for the third
time, Council Regulation (EC) No 467/2001 prohibiting
the export of certain goods and services to Afghanistan,
strengthening the flight ban and extending the freeze of funds
and other financial resources in respect of the Taliban of
Afghanistan and repealing Regulation (EC) No 337/2000 (1).
The applicant is named in Regulation (EC) 2062/2001.

According to the applicant, the Council and the Commission
have misused their powers conferred by Article 60 and 301
EC Treaty in adopting the Regulations in question. Further-
more, the applicant contends that the Regulations violate his
human rights, specifically Articles 3 and 8 of the European
Convention on Human Rights. Finally, the applicant claims
that the measures are disproportionate and in violation of the
principle of subsidiarity.

(1) Regulation No 17: First Regulation implementing Articles 85
and 86 of the Treaty (OJ, English Special Edition 1959-1962,
p. 87).

(1) OJ L 277, of 20.10.2001, p. 25.

Action brought on 17 December 2001 by Omar Mohamed
Othman against the Council of the European Union and
the Commission of the European Communities

(Case T-318/01)

(2002/C 68/24)

(Language of the case: English)

Action brought on 20 December 2001 by Roquette
Frères S.A. against the Commission of the European
Communities

(Case T-322/01)

(2002/C 68/25)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of
the European Communities was brought
before the Court of First Instance of the European Communities

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 December 2001 by Roquette
Frères S.A., established at Lestrem (France), represented by
Antoine Choffel and Olivier Prost, lawyers.