Case C-189/02 P: Appeal brought on 21 May 2002 by Dansk Rørindustri A/S against the judgment delivered on 20 March 2002 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-21/99 Dansk Rørindustri A/S v Commission of the European Communities
Date: 2002-08-24
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), equal treatment, fine, heating, infringement of EU law, restriction on competition, restrictive trade practice, trade restriction

24.8.2002

EN

Official Journal of the European Communities

C 202/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

ORDER OF THE COURT

(First Chamber)

of 22 March 2002

in Case C-69/02 (reference for a preliminary ruling from
the Tribunal de Paix, Luxembourg): Tilly Reichling v Léon
Wampach (1)

(Brussels Convention — Protocol concerning the interpret-
ation by the Court of Justice of the Convention — National
courts which may request the Court of Justice to give
preliminary rulings — Manifest lack of jurisdiction of the
Court)

(2002/C 202/01)

(Language of the case: French)

26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic (OJ 1989 L 285, p. 1) and the
Convention of 29 November 1996 on the accession of the
Republic of Austria, the Republic of Finland and the Kingdom
of Sweden (OJ 1997 C 15, p. 1) — the Court (First Chamber),
composed of: P. Jann, President of the Chamber, M. Wathelet
and A. Rosas, Judges; S. Alber, Advocate General; R. Grass,
Administrator,
for the Registrar, has made an order the
operative part of which is as follows:

The Court of Justice of the European Communities manifestly has no
jurisdiction to reply to the question referred to it by the Tribunal de
Paix, Luxembourg, by judgment of 28 February 2002.

(1) OJ 2002 C 118.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-69/02: reference to the Court from the Tribunal de
Paix (Luxembourg) for a preliminary ruling in the proceedings
pending before that court between Tilly Reichling and Léon
intervener: E´ tablissement d’assurances contre la
Wampach,
vieillesse et l’invalidité — on the interpretation of the Brussels
Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters (OJ
1972 L 299, 32), as amended by the Convention of Accession
of 9 October 1978 of the Kingdom of Denmark, of Ireland
and of the United Kingdom of Great Britain and Northern
Ireland (OJ 1978 L 304, p. 1 — amended text — p. 77), the
Convention of 25 October 1982 on the accession of the
Hellenic Republic (OJ 1982 L 388, p. 1), the Convention of

Appeal brought on 21 May 2002 by Dansk Rørindustri
A/S against the judgment delivered on 20 March 2002 by
the Court of First Instance of the European Communities
(Fourth Chamber) in Case T-21/99 (1) Dansk Rørindustri
A/S v Commission of the European Communities

(Case C-189/02 P)

(2002/C 202/02)

An appeal has been brought before the Court of Justice of the
European Communities on 21 May 2002 by Dansk Rørindustri
A/S,
represented by K. Dyekjær-Hansen, K. Høegh and
C.K. Lauridsen, against the judgment delivered on 20 March
2002 by the Court of First Instance of the European Commu-
nities (Fourth Chamber) in Case T-21/99 Dansk Rørindustri
A/S v Commission of the European Communities.

C 202/2

EN

Official Journal of the European Communities

24.8.2002

The appellant claims that the Court should:

— Amend Article 3 of Commission Decision 1999/60/EC
of 21 October 1998 relating to a proceeding under
[former] Article 85 of the EC Treaty (Case No IV/35.691/
E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) in
such a way as to reduce the fine of ECU 1 475 000 im-
posed on the appellant;

— In the alternative, in relation to the first head of claim: set
aside the judgment of the Court of First Instance and
remit the case for further consideration of the question
of the level of the fine;

— Order the Commission to pay the costs incurred by
Dansk Rørindustri A/S in the proceedings before the two
Community Courts.

Pleas in law and main arguments

Misconstruction of the law, consisting in an endorsement of
the Commission’s setting of the fine, by which the Court of
First Instance

— set aside Regulation No 17 (2) in conjunction with the
generally applicable principles of proportionality and
equality by imposing on Dansk Rørindustri a fine which,
by virtue of its relative amount, is disproportionate to the
infringement committed;

— set aside Regulation No 17 in conjunction with the
general principle of protection of legitimate expectations
by applying principles governing the imposition of
fines (3) which were substantially altered in relation to the
principles in force at the time of the unlawful conduct
and when the case was brought: it is not in accordance
with the purpose behind the Treaty and Regulation No 17
to apply guidelines on the level of fines that are drafted
in such a way that the intended and mandatory gradation
has no value or meaning whatsoever for small undertak-
ings. This, in the first place, gives rise to blatant and
unreasonable discrimination against smaller undertakings
and, second, has the result that the intended and manda-
tory gradation according to, inter alia, degree of guilt and
passage of time no longer serves any purpose and is
rendered subordinate to a determination calculated in an
entirely automatic manner.

The fact that the Court of First Instance reduced the factor
for the duration of the infringement without that having
any significance whatsoever demonstrates that a gra-
dation of the fine imposed on Dansk Rørindustri in line
with the scope of the infringement did not and cannot
take place if the guidelines are applied schematically
without any account whatever being taken of the size of
the undertaking.

It is grotesque that ABB, as the instigator, had its fine
reduced as a result of cooperation consisting to a large
extent in implicating the other cartel participants and
exaggerating their participation, where several of the
other undertakings involved at ABB’s instigation and
retained in the cartel were forced after the Cartel case to
withdraw from the market.

It is not denied that the wording of Article 15(2) of
Regulation No 17 does not contain an express limit on
turnover within the EU. However, an understanding of
the meaning of that relevant turnover has taken form
over the course of the years to such a degree that this
understanding has assumed the character of a customary
practice which cannot,
in the absence of additional
factors, be amended with retroactive effect.

— Formal error: even though the Court of Justice might
uphold the Court of First Instance’s acceptance of the
manner in which the Commission applied the guidelines,
the Court of First Instance erred in failing to accept that
application of those guidelines with retroactive effect
amounts to an infringement of the audi alteram partem
principle inasmuch as the appellant did not have any
opportunity to state its views on this amended practice.

(1) OJ 1999 C 100, p. 19.
(2) First Council Regulation implementing Articles 85 and 86 of the

Treaty, OJ English Special Edition 1959-1962, p. 87.

(3) Commission Information of January 1998 on 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).

Appeal brought on 31 May 2002 by (1) Isoplus Fernwär-
Isoplus
metechnik Vertriebsgesellschaft mbH,
(2)
Fernwärmetechnik Gesellschaft mbH and (3)
Isoplus
Fernwärmetechnik GmbH against the judgment delivered
on 20 March 2002 by the Fourth Chamber of the Court
of First Instance of the European Communities in Case
T-9/99 between HFB Holding für Fernwärmetechnik
Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für
Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwal-
tungsgesellschaft, Isoplus Fernwärmetechnik Vertriebs-
gesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
mbH und Isoplus Fernwärmetechnik GmbH and the
Commission of the European Communities

(Case C-202/02 P)

(2002/C 202/03)

An appeal against the judgment delivered on 20 March 2002
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-9/99 between HFB Holding
für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG,
HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft
mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Ver-
triebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
mbH und Isoplus Fernwärmetechnik GmbH and the Com-
mission of the European Communities was brought before the
Court of Justice of the European Communities on 31 May
2002 by Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH,
Isoplus Fernwärmetechnik Gesellschaft mbH and Isoplus
Fernwärmetechnik GmbH, represented by P. Krömer and
F. Nusterer, Rechtsanwälte, with an address for service in
Luxembourg.