Case T-33/02: Action brought on 21 February 2002 by Britannia Alloys and Chemicals Limited against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, equal treatment, fine, inter-company agreement

C 109/56

EN

Official Journal of the European Communities

4.5.2002

The applicant claims that the Court should:

Pleas in law and main arguments

— annul the Council’s decision refusing to allow the appli-

cant access to his medical file;

— order the Council to pay the costs.

Pleas in law and main arguments

the documents contained in
According to the applicant,
file are directly connected with his
an official’s medical
administrative and legal situation and must
therefore be
included in his personal file, whilst observing the guarantees
provided for in Article 26 of the Staff Regulations, in particular
the right of access to those documents. The applicant disputes
the assertion that the possibility of consulting his medical file
through the intermediary of his doctor constitutes adequate
access to the documents or a necessary measure in accordance
with the principle of medical confidentiality. He maintains that
he must be given the chance to consult
in person any
document in his medical file.

Action brought on 21 February 2002 by Britannia Alloys
and Chemicals Limited against the Commission of the
European Communities

(Case T-33/02)

(2002/C 109/108)

(Language of the case: English)

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 Britannia
Alloys and Chemicals Limited, represented by Ms Samantha
Mobley and Ms Helen Bardell of Baker & McKenzie, London
(United Kingdom).

The applicant claims that the Court should:

— annul Article 3 of the Commission Decision of 12 Decem-
ber 2001 relating to a proceeding under Article 81 of the
EC Treaty and Article 53 of the EEA Agreement (Case
COMP/E-1/37.027 — Zinc Phosphate)
insofar as it
pertains to the applicant;

— in the alternative, modify Article 3 of the Decision insofar
as it pertains to the applicant, so as to annul or
substantially reduce the fine imposed on the applicant
therein; and

— order the Commission to pay all

the costs of

the

proceedings.

The applicant contests the above-mentioned Decision in which
the Commission found that the applicant and five other
undertakings had infringed the provisions of Article 81(1) of
the Treaty and Article 53(1) of
the EEA Agreement by
participating in continuing agreement and/or concerted prac-
tices in the zinc phosphate sector. A fine of EUR 3.37 million
was imposed on the applicant following a reduction of 10 %
of the fine pursuant to Section D(2) of the Leniency Notice.

that

submits

The applicant
the Commission infringed
Article 15(2) of Regulation No. 17/62 by referring in the
Decision to the applicant’s turnover for the business year
ending 30 June 1996 when applying the limit fixed at 10 % of
turnover, instead of referring to its business year preceding the
adoption of the Decision, and by thus determining that a fine
of EUR 3.75 million did not exceed the upper limit of the fine
that could be imposed. By referring to a business year
other than the business year preceding the Decision for the
mentioned calculation, the Commission departed from its
previous practice and thus infringed the general principle of
equal treatment.

The applicant alleges that by referring to the last entire year of
‘normal economic activity’ instead of the business year preced-
ing the Decision, the Decision discriminated between undertak-
ings in essentially the same situation and thus breached the
general principle of equal treatment. It also breached the
general principle of proportionality by imposing a fine on the
applicant which does not reflect
the applicant’s financial
standing at the time of the Decision.

Furthermore,
insofar as the
the applicant submits that,
Decision relates to the applicant, the Commission infringed
the general principle of legal certainty by referring to a business
year other than the financial year preceding the Decision for
the purposes of calculating the limit fixed at 10 % of turnover.
Such a way of proceeding makes it impossible for undertakings
to predict the way in which penalties might be imposed on
them with sufficient certainty. In accordance with the above-
mentioned principle, Article 15(2) of Regulation No. 17/62
must be interpreted strictly so that the 10 % limit is always
applied to the business year immediately prior to the adoption
of the Decision.