Case T-15/02: Action brought on 31 January 2002 by BASF AG against the Commission of the European Communities
Date: 2002-05-04
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, fine, pharmaceutical industry, restrictive trade practice, vitamin

4.5.2002

EN

Official Journal of the European Communities

C 109/49

Pleas in law and main arguments

Action brought on 31 January 2002 by BASF AG against
the Commission of the European Communities

The applicants import organic, fair-trade and conventionally
grown bananas into the European Union. They are all non-
importers of bananas who have requested and
traditional
received a C quota for 2002. Because of Commission Regu-
lation 2294/2001, the applicants are allowed to import during
the first quarter of 2002 only 8 % of their quota, while the
traditional C operators can import 26 % of their quota, and
the traditional and non-traditional A and B operators 27 %.

According to the applicants, the Commission has misused its
powers in that the Commission, by the contested Regulation,
favours the traditional C operators. Following the agreement
reached between the European Union and the United States,
and the agreement with Ecuador to resolve the respective
disputes over bananas, the banana regime in the European
Union will be reformed in two stages. The second stage
includes a reduction of the C quota by 100 000 tonnes. As a
consequence of the contested Regulation, the burden of the
the C quota will be imposed, according to
decrease of
the applicant, solely on the non-traditional importers. The
applicant points out that if this limitation of 8 % is taken
through the whole year, this leads to a reduction of the import
under the C quota of approximately 100 000 tonnes.

Furthermore, the contested Regulation violates the principles
of proportionality and non-discrimination. The non-tra-
ditional C operators are the only operators who can import
only 8 % of their quota in the first quarter. This limitation
discriminates, according to the applicant, between the tra-
ditional and non-traditional C operators in particular. The
contested measure is also disproportionate, since the Com-
mission places the burden of the decrease of the C quota solely
on the non-traditional C operators. Instead the Commission
could have spread this burden between the traditional and
non-traditiona C operators. According to the applicant, it is
also unlikely that the Commission will divide the remaining
92 % of the quota over the remainder of the year.

Finally, the applicants claim that there has been a violation of
the principle of legitimate expectations and legal certainty.
According to the applicants, the current 8 % allocation is a
complete departure from the Commission’s earlier practices
where allocations of 26 to 28 % were given to the non-
traditional C operators for the first quarter of the year. The
applicants also claim that they could legitimately rely on the
fact that the decrease of the C quota would be divided between
the different traditional and non-traditional operators in a
proportionate manner.

(Case T-15/02)

(2002/C 109/97)

(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 31 January 2002 by BASF AG,
represented by Mr Nicholas Levy, Dr John Temple Lang,
Mr Robert O’Donoghue and Dr Christoph Feddersen of Cleary,
Gottlieb, Steen & Hamilton, Brussels (Belgium).

The applicant claims that the Court should:

— annul or substantially reduce the fine imposed on BASF

pursuant to Article 3(b) of the Decision;

— order the Commission to pay BASF’s legal and other costs

and expenses in relation to this matter.

Pleas in law and main arguments

The present application concerns a Decision of the European
Commission rendered on 21 November 2001,
in case
No. COMP/E-1/37.512-Vitamins. This Decision finds that a
number of companies infringed Article 81 EC and Article 53
EEA by participating in a cartel that affected the global markets
for vitamins A, E, B2, B5, C, D3 and Beta-carotene and
carotinoids. The fines imposed on the companies involved
were the highest ever in a competition law case.

In support of its claims, the applicant relies on and submits
the following grounds and main arguments:

— Whilst the statements of objections stated that there was
a single cartel, comprising collusive arrangements with
regard to various vitamins, the contested Decision, in
contrast, stated for the first time that the arrangements
with regard to each vitamin constituted ‘distinct’ infringe-
ments of Community competition law. The Commission
has thus breached the principle according to which a
Decision cannot rely on legal or factual objections
that are materially different from those contained in a
statement of objections.

C 109/50

EN

Official Journal of the European Communities

4.5.2002

— The Commission’s failure clearly to articulate in the
statement of objections the basis upon which it proposed
to fine BASF represents a legal error that prejudiced
BASF’s rights of defence. This statement of objections is
general and vague as regards the elements relating to the
calculation of the fine. On this point, the applicant also
observes that the ‘starting point’ of its fine was arbitrary,
disproportionate and contrary to the principle of equal
treatment, and that the 100 % increase imposed upon it
as a deterrent is unexplained, excessive and could not
reasonably have been foreseen.

— The Commission erred in attributing to BASF the joint

role of leader and instigator of the alleged cartel.

— The applicant satisfied all the conditions for an award of
a greater reduction of its fine under Section B of the
Leniency Notice. In any case, irrespective of this Leniency
Notice, BASF’s co-operation merits a greater reduction of
its fine.

— The Commission’s disclosure of BASF’s fine to the
media prior to the adoption of the contested Decision
constitutes a material legal error.

— annul the decision concerning family allowances taken in
the form of Notice of Amendment No 3 on 13 July
for Personnel and
2001 by the Directorate-General
Administration of the European Commission;

— declare that the applicant and her stepdaughters are
entitled to receive the family allowances suspended by
the Commission’s decision of 13 July 2001 together with
default
the Staff
Regulations;

interest, pursuant

to Article 67 of

— order the European Commission to pay the sum of
EUR 35 935 together with statutory interest by way of
compensation for the material damage caused by its
failure to give an express decision upholding the com-
plaint lodged on 14 September 2001;

— order the European Commission to pay the sum of
EUR 25 000 or such other amount, including any higher
amount, as may be determined by the Court of First
Instance by way of compensation for the non-material
damage suffered, first, as a result of the failure to respond
to the complaint lodged on 14 September 2001 and,
second, the incorrect and fallacious information provided
to the European School by the defendant;

— order the defendant to pay all the costs, including lawyers’
fees, incurred as a result of the action brought pursuant
to Article 90(1) of the Staff Regulations;

Action brought on 5 February 2002 by Anita Jannice
O¨ sterholm against the Commission of the European
Communities

in the alternative:

(Case T-18/02)

(2002/C 109/98)

(Language of the case: French)

— order the European Commission to pay the sum of
EUR 235 340 together with statutory interest by way of
compensation for the material damage caused by the
invoicing of the school fees relating to the attendance at
the European School of the applicant’s stepdaughters.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 February 2002 by Anita Jannice
O¨ sterholm, residing in Stockholm, represented by Juan Ramo´ n
Iturriagagoitia, lawyer.

The applicant claims that the Court should:

— annul the decision given by the Directorate-General for
Personnel and Administration of the European Com-
mission on 13 July 2001 concerning family allowances;

Pleas in law and main arguments

The contested decision suspends the applicant’s household
allowance, dependent child allowance and education allow-
ance. In support of her claim, the applicant pleads, first, an
error of assessment of the facts and misuse of powers by the
Commission. In the applicant’s view, she fulfils all the con-
ditions for entitlement to the household allowance, dependent
child allowance and education allowance as laid down in
Article 67 of the Staff Regulations and Annex VII thereto, and
has also provided the Commission with all the evidence
necessary for the grant of those allowances.