Case T-64/02: Action brought on 28 February 2002 by Dr. Hans Heubach GmbH & Co KG against the Commission of the European Communities
Date: 2002-06-15
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, offence, restriction on competition, type of business

15.6.2002

EN

Official Journal of the European Communities

C 144/49

The applicant claims that the Court should:

was a leader and its conclusions as to the appropriate level of
deterrent uplift in its assessment of the fine.

— annul Article 1 of the Decision, to the extent that it finds
that Archer Daniels Midland Company (‘ADM’) has
violated Article 81 EC Treaty and Article 53 EEA
Agreement by agreeing (i) to restrict capacity and (ii) to
designate price leaders in relation to citric acid;

— annul Article 3 of the Decision in so far as it pertains to

ADM;

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

— order that the Commission pay all of the costs of the

proceedings.

Pleas in law and main arguments

The applicant in the present case challenges the Commission
Decision of 5 December 2001, relating to a proceeding under
Article 81 of the EC Treaty and Article 53 of the EEA
Agreement (Case COMP/E-1/36.604 — Citric Acid), to the
extent that it finds that ADM has violated these provisions by
agreeing to restrict capacity and to designate price leaders in
relation to citric acid.

In support of its claims, the applicant submits that the Decision
is inadequately reasoned, in as much as:

— the Commission did not give proper reasons regarding
how it took account of the damage to and the impact on
competition or in relation to its decision not to take into
account, in assessing the level of ADM’s fine, ADM’s EEA
in the affected product market;

Finally, the applicant claims that the defendant has violated
Article 15(2) of Regulation no. 17 and rules applicable to the
setting of fines. In this regard, the applicant considers that
there has been an infringement of the principles of legal
certainty, inasmuch as the Guidelines of Fines Methodology
was applied to a cartel which ended many years before
these Guidelines were adopted; equal treatment; protection of
legitimate expectations and proportionality. In particular, the
Commission did not correctly assesse the value of ADM’s
cooperation

Action brought on 28 February 2002 by Dr. Hans Heu-
bach GmbH & Co KG against the Commission of the
European Communities

(Case T-64/02)

(2002/C 144/100)

(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 28 February 2002 by Dr. Hans
Heubach GmbH & Co KG, of Langelsheim (Germany), rep-
resented by Frank Montag and Günter Bauer, lawyers.

The applicant claims that the Court should:

— annul Article 3(b) of the contested decision;

— reduce to a reasonable sum the amount of the fine
imposed on the applicant in the contested decision;

— it failed to state on what basis an uplift of 100 % could
be considered necessary to have a deterrent effect;

— order the defendant to pay the costs.

— the Commission did not state reasons for assessing ADM

as a leader.

Pleas in law and main arguments

The applicant submits that there has been an infringement by
the Commission of essential procedural requirements, in that
it failed to put to ADM its key conclusions regarding the
nature of the violations in question, its conclusions that ADM

The contested decision is the same as that at issue in Case
T-33/02 Britannia Alloys & Chemicals v Commission (not yet
published). The applicant argues that the basic amount of the
fine corresponds to more than 100 % of its EEA-wide product
turnover in 1998, and that the amount of the fine imposed on

C 144/50

EN

Official Journal of the European Communities

15.6.2002

the applicant is the result of numerous errors on the part of
the defendant concerning the determination and assessment
of the facts for the purposes of calculating the fine. In addition,
the defendant infringed numerous fundamental principles of
Community law.

that

claims

applicant

the Guidelines (1)

The
infringe
Article 15(2) of Regulation No 17/62. Its complaint basically
concerns the flat-rate determination of the amount of fines
resulting from the introduction of the Guidelines.
In the
applicant’s view, the amount of fines should be calculated only
in proportion to turnover, and the flat-rate determination
provided for in the Guidelines in respect of smaller undertak-
ings chiefly results in fines which are unreasonable and
disproportionate. Consequently, Article 3(b) of the contested
decision is likewise unlawful.

In addition, the applicant maintains that, even assuming that
the Guidelines are lawful, the defendant misapplied them. In
particular, the defendant misjudged the constituent element of
the contravention which is the seriousness of the act. It should
have had regard to the fact that the contravention was only
moderately serious and had little effect on the market, and to
the fact that the undertakings concerned did not adhere to the
price agreements. The fact that only a very small proportion of
the applicant’s total turnover was affected by the contravention
constitutes an infringement of Article 15(2) of Regulation
No 17/62, and, in addition, the limited economic efficiency of
the applicant was wrongly left out of account.

The applicant argues that, in any event, the amount of the fine
is contrary to the general principles of proportionality and
reasonableness, and that the failure to take into account the
small product turnover of the applicant as compared with the
total turnover resulted in an infringement of the principle
of equal treatment. Quite different fines were imposed on
undertakings having a totally similar strength in the market.

Lastly, the applicant maintains that the calculation of the
penalty by the defendant infringes Article 7 of the ECHR,
inasmuch as the financial penalty imposed on the applicant
reflects a range of penalisation which has twice been decisively
extended since the termination of the contravention. The
systematic alteration of the practice followed by the defendant,
resulting from the introduction of the Guidelines and the
change in the method of determining fines at the end of 2001,
constitutes an extension of the range of penalisation which
cannot be applied to conduct which occurred before that
extension took place.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ 1998 C 9, p. 3).

Action brought on 11 March 2002 by Griffin Europe
Headquarter N.V. against the European Parliament and
the Council for the European Union

(Case T-70/02)

(2002/C 144/101)

(Language of the case: English)

An action against the European Parliament and the Council of
the European Union was brought before the Court of First
Instance of the European Communities on 11 March 2002 by
Griffin Europe Headquarter N.V., represented by Mr Koen Van
Maldegem and Mr Claudio Mereu of McKenna & Cuneo, LLP,
Brussels (Belgium).

The applicant claims that the Court should:

— order the partial annulment of Decision 2455/2001/EC
of the European Parliament and of the Council dated
20 November 2001 establishing a list of priority sub-
stances in the field of water policy and amending Directive
2000/60/EC, so as to remove diuron and isoproturon
from the measure;

— order the Defendants to pay all costs and expenses in

these proceedings.

Pleas in law and main arguments

The applicant in this case produces pesticides (plant protection
products). The applicant contests the inclusion of certain of its
products’ active substances, diuron and isoproturon, in the list
of priority substances in the field of water policy. This list is
established by the defendants in execution of Directive 2000/
60/EC (1). The products listed are considered to present a risk
to or via the aquatic environment and their emissions must be
reduced. Furthermore, the contested decision indicates some
of
the applicant’s products as priority substances ’under
lead, according to the applicant, to a
review’, which will
classification as priority hazardous substances. These substanc-
es pose a higher risk for the aquatic environment and their
emissions must be eliminated.

The applicant objects to the procedure and the methodology
used by the defendants when adopting the contested Decision.
To establish the contested list, the defendants used a summary
procedure as laid down in Article 16 (2), second paragraph, of
Directive 2000/60.