Case T-26/02: Action brought on 8 February 2002 by Daiichi Pharmaceutical Co. Ltd. against the Commission of the European Communities
Date: 2002-04-20
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, market-sharing agreement, pharmaceutical industry, restrictive trade practice

20.4.2002

EN

Official Journal of the European Communities

C 97/13

Pleas in law and main arguments

The applicant, a Spanish maritime company which, although
the majority of its shares are held in the Netherlands, has for a
long time been operating a number of sea routes between
is challenging the
the islands of the Canaries archipelago,
Commission decision

(a)

not to contest the payment to Transmediterra´nea S.A. of
PTA 15 560 625 000 intended to make up for the losses
arising from the provision of cabotage services during
1997 and, secondly, to settle the rights and obligations
of the State directly linked to the public service contract
entered into in 1977 between Transmediterra´nea and the
Spanish State and,

(b) not to raise any objection whatever to the aid valued at
PTA 1 650 000 000 paid to Transmediterra´nea in the
form of public service compensation for the maritime
cabotage services provided by that company in the
Canaries archipelago during 1998.

As regards the first aspect, that is to say the amounts paid to
Transmediterra´nea in the form of settling accounts for 1997
and final settlement of the contract which the Commission
accepts because it deems such payments existing aid — prior
to the accession of Spain — in that they arise directly from the
implementation of the contract entered into in 1977, the
applicant claims that the contested decision is vitiated by an
error of assessment inasmuch as it allows:

— certain expenditure relating to staff reduction to be
charged to the accounts for 1997 and for final settlement;
and

— infringes Article 86(2) of the EC Treaty and general
communications on services in the general interest and
those specifically concerning aid to maritime transport
by considering, in blatant contradiction to those pro-
visions, that the aid is compatible with Article 86(2). The
applicant would point out in that respect that:

(a)

there is no act emanating from the public authorities
defining the content of services in the general
interest and recommending Transmediterra´nea to
provide them;

(b)

it was not necessary to declare Canary routes as
being in the general interest; and

(c)

the routes were not awarded by means of an open
tender procedure.

Action brought on 8 February 2002 by Daiichi Pharma-
ceutical Co. Ltd. against the Commission of the European
Communities

(Case T-26/02)

(2002/C 97/27)

(Language of the case: English)

— payment of the entire amount by way of final settlement
without charging the debts to the financial years in which
they may have arisen and without offsetting them with
any surpluses.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8th February 2002 by Daiichi
Pharmaceutical Co. Ltd., represented by Mr Jacques Buhart and
Mr Pierre-M. Louis of Coudert Brothers LLP, Brussels (Belgium).

As regards the second aspect, that is to say the aid granted in
the form of compensation for the routes provided in the
Canaries during 1998, which the Commission classifies as new
aid, the applicant alleges that the contested decision:

— infringes Article 88 of the EC Treaty, since the competent
Spanish authority, by granting the aid, has failed to fulfil
its obligations under the recommendation, drawn up by
the Commission pursuant to the aforementioned article,
on the upkeep and maintenance of the system of aid
applicable to Transmediterra´nea.

The applicant claims that the Court should:

— annul Article 3 (f) of

the Commission Decision of
21 November 2001 relating to a proceeding pursuant to
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case No. COMP/E-1/37,512 — Vitamins);

— alternatively, substantially decrease the fine levied on the

applicant; and

— order the Commission to pay the costs.

C 97/14

EN

Official Journal of the European Communities

20.4.2002

Pleas in law and main arguments:

Action brought on 21 February 2002 by the Associazione
Bancaria Italiana (ABI) against the Commission of the
European Communities

company manufactured D-pantolactone

The applicant is a Japanese pharmaceutical company whose
subsidiary
and
Pyridoxine
D-Calcium Pantothenate
(Vitamin B6) during the relevant period. In the contested
Decision, the Commission imposed fines upon the applicant
and seven other companies for participating in eight distinct
secret market-sharing and price-fixing cartels affecting vitamin
products.

(Vitamin B5)

and

The applicant does not dispute the Commission’s finding that
the applicant had infringed Article 81(1) of the EC Treaty
and Article 53(1) of the EEA Agreement by participating in
agreements affecting the Community and EEA markets for
Vitamins B5 and B6. Furthermore, the applicant does not
contest the facts found by the Commission. The applicant
seeks, however, the annulment of Article 3(f) of the Decision
imposing a fine of EUR 23.4 million upon the applicant or,
alternatively, a substantial reduction of that fine.

The applicant submits inter alia that the Commission commit-
ted a manifest error of judgement, erroneously applied the law
to the facts and infringed the Fining Guidelines

— by failing to place the applicant in a third category,
behind both Hoffmann-La Roche and BASF, in setting
the starting point for the amount of the fine relating to
the gravity of the infringement, or, alternatively and in
violation of the principle of equal treatment, in failing to
place the applicant in the second category with BASF;

— by failing to treat the applicant’s less-than-full implemen-
tation of the Vitamin B5 cartel as an attenuating circum-
stance warranting a substantial reduction of the basic
amount of the fine;

— by failing to grant to the applicant total immunity or a
very substantial reduction of 75 % to 100 % of the fine
for the Vitamin B5 infringement pursuant to Section B
of the Leniency Note on the basis of the applicant’s
cooperation during the procedure or, alternatively, a
lesser reduction of the fine pursuant to Section C or
Section D of the Leniency Notice.

(Case T-36/02)

(2002/C 97/28)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by the Associa-
zione Bancaria Italiana (ABI), represented by Alberto Santa
Maria, Claudio Biscaretti di Ruffia, Giuseppe Pizzonia and
Marcello Valenti, lawyers.

The applicant claims that the Court should:

— annul the contested decision,

issued on 11 December
2001 by the Commission of the European Communities,
on the grounds that it infringes essential procedural
requirements and/or is unfounded, contradictory and/or
lacking in a statement of reasons in accordance with
Article 253 of the EC Treaty in conjunction with Arti-
and with Council Regulation
cles 87
No 659/1999, as expounded in the application;

and

77

— alternatively, annul the decision in question wholly or in
part pursuant to the second paragraph of Article 230 of
the EC Treaty, inasmuch as it infringes or misapplies
Article 87(1) or, in the further alternative, Article 87(3)(b)
or (c) of the EC Treaty, as expounded in the application;

— in the still further alternative, in the inconceivable event
that the Court finds that the articles of Law No 461 of
23 December 1998 and of Legislative Decree No 153 of
17 May 1999, to which the contested decision relates,
constitute a system of State aid which is incompatible
with the common market, rule that the contested decision
of the Commission cannot have any retroactive effect;

subject to the reservation of all rights.

Pleas in law and main arguments

The present action is directed against
the Commission’s
decision of 11 December 2001 concerning the system of State
aid implemented by Italy in favour of banks (C/54/A/2000/EC
[ex NN 70/2000]). That system of aid results from the
application of Law No 461 of 23 December 1998 (the ‘Legge
Ciampi’) and of Legislative Decree No 153 of 17 May 1999,
which lay down certain fiscal measures in relation to mergers
between banking institutions and the transfer of capital goods
and equipment, as part of the composite scheme for the
privatisation of the sector.