Case T-322/01: Action brought on 20 December 2001 by Roquette Frères S.A. against the Commission of the European Communities
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Commission, France, action for annulment (EU), chemical industry, competition law, economic concentration

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.

C 68/14

EN

Official Journal of the European Communities

16.3.2002

The applicant claims that the Court should:

— annul Article 1 of the contested decision in so far as it
considers — in the case of Roquette — that the infringe-
ment lasted from February 1987 to June 1995;

— annul Article 3 of the contested decision in so far as it
imposes a fine of 10,8 million euros on Roquette Frères;

— in the exercise of its unlimited jurisdiction, reduce the

amount of the fine imposed on Roquette Frères;

— order the Commission to pay the costs.

— assessed the role played by Roquette in the cartel
without taking account of part played by he appli-
cant in restraining its implementation;

— minimised the nevertheless decisive nature of the
information supplied by Roquette to prove the
existence of the cartel and to explain the way in
which it worked;

— violation of the principle ne bis in idem, inasmuch as the
Commission failed to take account of
that
Roquette had already been fined $ 2 500 000 by the US
authorities on account of a breach concerning the same
subject-matter as that giving rise to the contested decision.

the fact

Pleas in law and main arguments

By a decision adopted on 2 October 2001, the European Union
imposed on the applicant company a fine of 10,8 million euros
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
contracts concluded with customers.

By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:

— infringement of Article 15 of Regulation No 17 and
violation of the principles of equality and proportionality,
inasmuch as the Commission failed adequately to assess
either the seriousness or the duration of the breach. More
particularly, according to the applicant, the defendant
included, in the turnover figure used to calculate the basic
amount of the fine, the sales volumes relating to another
product (stock-solutions) which never formed the subject-
matter of the breach. In addition, the Commission fixed
the date of the breach as June 1995, whereas the leader
of the cartel in the Commission’s eyes itself confirmed
that Roquette had decided to cease providing statistics
from 1994 onwards and various items of evidence arising
from the Commission’s investigations and from the
cooperation provided by the various undertakings
showed that Roquette had left the cartel in 1994;

— misapplication by the Commission of its guidelines for
calculating fines, as regards mitigating factors, and of its
communication concerning the non-imposition of fines
or the reduction of the amount thereof in cartel cases. The
applicant asserts in that connection that the defendant:

Action brought on 11 December 2001 by Axions S.A.
and Christian Belce against the Office for Harmonisation
in the Internal Market (Trade Marks and Designs)

(Case T-324/01)

(2002/C 68/26)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
11 December 2001 by Axions S.A., of Geneva (Switzerland),
and Christian Belce, of Veyrier (Switzerland), represented by
C. Eckhartt, lawyer.

The applicant claims that the Court should:

— annul the decision adopted on 26 September 2001 by
the Third Board of Appeal of the Office for Harmonisation
in the Internal Market (Trade Marks and Designs) in Case
No R 599/2001-3;

— order the defendant Office to pay the costs.

Pleas in law and main arguments

— assessed the supposed effects of the cartel without
taking account of the information and evidence
provided by the applicant, which show the limited
effect which the cartel had on the market for the
product in question;

The trade mark con-
cerned:

a three-dimensional mark rep-
resenting a cigar, brown in colour

Goods or services:

goods in Class 30 (chocolate,
chocolate goods, bakery wares
and confectionery)