Case T-282/02: Action brought on 11 September 2002 by Cementbouw Handel & Industrie B.V. against the Commission of the European Communities
Date: 2002-11-09
Institutions: Court of First Instance
Subjects: action for annulment (EU), building materials, dominant position, economic concentration

9.11.2002

EN

Official Journal of the European Communities

C 274/37

Decision of the Board of
Appeal:

Pleas in law:

Decision of the examiner set aside
in so far as it applies to services in
Class 35. Dismissal of the remain-
der of the appeal.

— Infringement

of Article
7(1)(c) of Regulation (EC)
No 40/94 (2);

— Infringement

of Article
7(1)(b) of Regulation (EC)
No 40/94.

( 1) Case R 239/2002-3.
( 2) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 1994 L 11, p. 1).

Action brought on 11 September 2002 by Cementbouw
Handel & Industrie B.V. against the Commission of the
European Communities

(Case T-282/02)

(2002/C 274/64)

(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 11 September 2002 by
Cementbouw Handel & Industrie B.V., Amsterdam, Nether-
lands,
and
represented
O. W. Brouwer, Advocaat.

by W. Knibbeler, Advocaat

The applicant claims that the Court should:

— annul Article 1 of the contested Decision;

— annul Article 2 of the contested Decision;

— annul Article 3 of the contested Decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant contests Commission Decision C(2002) 2315,
of 26 June 2002.

The applicant is active in the building materials sector. In
1999, the applicant and Franz Haniel & Cie GmbH acquired
from Ruhrkohle AG its shares in certain factories which were
members of the ‘Coöperatieve verkoop en produktievereniging
van kalkzandsteenproducenten’ (CVK), a co-operative organ-
ization for Dutch calcium silicate producers. According to the
contested Decision, the applicant and Franz Haniel thereby
gained joint control of CVK. The Decision further states that
the second set of commitments offered by the applicant and
Franz Haniel are sufficient to ensure that the concentration
would be compatible with the common market.

In support of its application, the applicant submits that the
Commission has infringed Article 3 of Council Regulation
No 4064/89 (1). According to the applicant, the Commission
erred in concluding that the applicant and Franz Haniel have
joint control of CVK. The applicant furthermore claims that
the Commission did not provide sufficient evidence for this
conclusion and failed to give reasons for it, in breach of
Article 253 of the EC Treaty.

the Commission erred in concluding that

The applicant also submits that the Commission has infringed
Article 2 of Regulation No 4064/89. According to the
applicant,
the
transaction under which the shares in Ruhrkohle AG were
acquired by the applicant and Franz Haniel led to a dominant
position for CVK on the market for building materials for
load-bearing walls in the Netherlands. Nor,
the applicant
claims, did the Commission provide sufficient evidence in
support of this conclusion or provide a statement of its reasons
for it, in breach of Article 253 of the EC Treaty.

The applicant
finally claims that Article 3 and 8(2) of
Regulation 4064/89 were misapplied, and the principle of
proportionality was breached by the Commissions failure to
accept the first set of commitments submitted by the applicant
and Franz Haniel.

(1) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395,
p. 1) (republished in OJ 1990, L 257, p. 13).