Case T-38/02: Action brought on 22 February 2002 by Groupe Danone against the Commission of the European Communities
Date: 2002-04-20
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), beer, beverage industry, food industry, restrictive trade practice, retail selling

20.4.2002

EN

Official Journal of the European Communities

C 97/15

In support of its claims, the applicant association puts forward
the following pleas and arguments:

— The fiscal measures in favour of mergers between banking
institutions are not selective and do not constitute ad hoc
aid. It should be borne in mind in that regard that the
incentives for mergers between
introduction of fiscal
banking institutions, as provided for under the Italian
rules since 1990, the primary aim of which is to facilitate
the privatisation of the sector,
is solely intended to
improve the functioning and flexibility of the tax rules
with specific reference to the reality of the developments
taking place in the Italian banking system.

— The fiscal measures provided for in favour of transfers of
to institutions do not
capital goods and equipment
constitute aid,
inasmuch as they do not involve any
effective waiver by the State of the collection of tax
revenues.

— Neither of those types of fiscal measures distorts or
threatens to distort competition. No preliminary investi-
gation whatever has been carried out by the Commission
in relation to this point. It must be emphasised in that
regard that, compared with their competitors in the
Community, Italian banks are additionally penalised by a
higher tax burden which cannot easily be reconciled with
the tax regimes applying in other Member States.

laws. In that regard, it should be borne in mind that the
‘Legge Amato’ had been expressly considered by the
defendant on various occasions in connection with
Sicilian banks and the Banco di Napoli. In the latter
connection, the applicant pleads infringement of the
principles of the protection of legitimate expectations,
proportionality and legal certainty.

Action brought on 22 February 2002 by Groupe Danone
against the Commission of the European Communities

(Case T-38/02)

(2002/C 97/29)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 February 2002 by Groupe
Danone, established in Paris, represented by Antoine Winckler
and Marc Waha, lawyers.

— The fiscal measures adopted in relation to mergers
between banking institutions do not affect trade between
Member States.

The applicant claims that the Court should:

— No preliminary investigation has been carried out, and
no statement of reasons has been given as to why this
case does not concern de minimis aid.

— The defendant’s refusal to carry out any specific assess-
ment of the Italian rules in question meant that it was not
able to gain a better understanding of the scope and
content of those rules; this would probably have enabled
it to ascertain that they complied with Article 87(1) and
(3) EC and correctly to assess the appropriateness of
their intended purpose. In actual fact, the Commission
understood neither the content nor the scope of the
Italian rules forming the subject-matter of the case.

— In the contested decision, the Commission, when asses-
sing the possible incompatibility of certain provisions of
the law in question for the purposes of Article 87(1) EC,
wholly failed to take into account the significance, dealt
with at length in the procedure before the Commission,
of the common validity and continuity of the ‘Legge
Amato’ (Law No 218 of 30 July 1990) and the ‘Legge
Ciampi’ in the context of the privatisation of the Italian
banking system, which was initiated by the first of those

— annul the decision in issue, pursuant to Article 230 of

the EC Treaty;

— alternatively, reduce the fine imposed on the applicant by
the decision, pursuant to Article 229 of the EC Treaty;

— order the Commission to pay the costs.

Pleas in law and main arguments

The decision contested in the present case concerns two
agreements relating to the Belgian beer market. The first was
concluded between Interbrew N.V. and Brouwerijen Alken-
Maes N.V. It included, in particular, a general ‘non-aggression
pact’, an agreement regarding retail prices and a market-
sharing arrangement in the hotel/restaurant/café sector. The
Commission has not censured Alken-Maes for having partici-
pated in that agreement, but only its majority shareholder at
its own
the time, namely the applicant, on account of
participation in the agreement and the fact that it formed an
economic entity with Alken-Maes.

C 97/16

EN

Official Journal of the European Communities

20.4.2002

The defendant has also established the existence of a second
agreement, concerning beers sold under distributors’ brand
names, concluded between Interbrew, Alken-Maes, Haacht and
Martens, involving market-sharing and collusion in respect of
price-fixing. As regards that second agreement, the contested
decision does not censure the applicant in relation to the acts
of its former subsidiary, since it was not involved therein.

The applicant does not challenge the basic findings underlying
the contested decision. In support of its claims, it puts forward
the following pleas in law and main arguments:

— The Commission has infringed the principles of propor-
treatment by taking the sum of

tionality and equal
25 million EUR as the ‘basic amount’ of the fine.

— The decision is factually unfounded, inasmuch as it finds
that the infringement lasted from 28 January 1993 to
28 January 1998. In so finding, the Commission applied
too high a multiplier to the amount of the fine.

Action brought on 25 February 2002 by Jungbunzlauer
AG against the Commission of the European Communi-
ties

(Case T-43/02)

(2002/C 97/30)

(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 25 February 2002 by Jungbunzlau-
er AG, of Basle (Switzerland), represented by R. Bechtold,
M. Karl and U. Soltész, lawyers.

The applicant claims that the Court should:

— The decision is factually unfounded in so far as it finds
that the applicant forced Interbrew to participate in the
agreement.

— annul the Commission’s decision of 5 December 2001

(Case COMP/E-1/36.604 — Citric acid);

— The decision is unfounded in law and in fact, in that there
was no justification for increasing the fine on account of
the fact that the applicant had already been found on two
earlier occasions to have acted unlawfully. In that regard,
the Commission has infringed the principles of ‘nulla
poena sine lege’, ‘ne bis in idem’ and legal certainty.

— The decision is unfounded in law and in fact, inasmuch
as it reduces the fine by only 10 % on account of
mitigating circumstances. It omitted to take into account
the influence of the price control system and the tradition
of concerted practices in the brewing sector, the fact that
the agreement had no effect on the market, the dependent
situation of Alken-Maes by comparison with the domi-
nant position occupied by Interbrew, the financial difficul-
ties facing Alken-Maes and the crisis situation prevailing
during the period in question.

— The decision is unfounded in law and in fact, inasmuch
as it finds that the applicant contested the facts alleged
against it. In that respect, the applicant should have been
entitled to a substantial reduction in the fine.

The applicant company also pleads violation of its rights of
defence and failure on the part of the Commission to comply
with its obligation to provide a statement of reasons.

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

decision;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The subject-matter of the dispute is the Commission’s decision
of 5 December 2001 (Case COMP/E-1/36.604 — Citric acid)
in which the Commission found that
the applicant and
four other undertakings had infringed Article 81(1) EC and
Article 53 of the EEA Agreement, in that they had participated
in a continuing agreement and/or a concerted practice in the
citric acid sector. A fine of EUR 17,64 million was imposed on
the applicant.

First, the applicant claims that the decision was directed to the
wrong addressee. The decision should,
in fact, have been
directed to Jungbunzlauer Ladenburg GesmbH, an associate
company of the applicant.

The applicant claims that the Commission did not adequately
establish the actual effects on the market and that it refused to
take into account,
in the applicant’s favour, the fact that
Jungbunzlauer Gesmbh played a special role in the cartel.