Case T-303/02: Action brought on 4 October 2002 by Westfalen Gassen Nederland B.V. against the Commission of the European Communities
Date: 2002-12-07
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), discriminatory price, fine, gas, gas industry, import, restrictive trade practice

7.12.2002

EN

Official Journal of the European Communities

C 305/25

Action brought on 4 October 2002 by Westfalen Gassen
Nederland B.V. against the Commission of the European
Communities

(Case T-303/02)

(2002/C 305/54)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 4 October 2002 by Westfalen
Gassen Nederland B.V., established at Deventer (Netherlands),
represented by J.J.M. Essers, lawyer.

The applicant claims that the Court should:

(1) primarily, annul Articles 1 and 3 of the Commission’s
decision of 24 July 2002 in case COMP/E-3/36.700 —
Industrial and medical gases, imposing on the applicant a
fine of EUR 0.43 million for infringement of Article 81(1)
EC;

(2)

alternatively, annul Article 1 of that decision and substan-
tially reduce the fine imposed by Article 3 thereof;

(3) order the Commission to pay the costs.

Pleas in law and main arguments

Furthermore, according to the applicant, the Commission has
failed to take account of the fact that, by virtue of the attitude
adopted it at meetings of the Vereniging van Fabrikanten van
Industriële Gassen (Association of Manufacturers of Industrial
Gases), smaller undertakings were excluded from further
involvement
in the discussions concerning the concerted
practices at issue. The applicant’s attitude was not passive; on
the contrary, it actively opposed those practices. According to
the applicant, the attitude thus adopted by it in fact had an
effect which was beneficial to competition.

The applicant further claims that the Commission is mistaken
as to the duration of the infringement allegedly committed by
it.

Finally, the applicant claims that the fine imposed is contrary
to the principles of proportionality and equality. According to
the applicant, having regard to the turnover figure at the time
it has in relative terms suffered the
of the infringement,
heaviest penalty, and the Commission, when fixing the amount
of
factual
assumptions.

the fine, proceeded on the basis of incorrect

Action brought on 7 October 2002 by NV Hoek Loos
against the Commission of the European Communities

(Case T-304/02)

(2002/C 305/55)

(Language of the case: Dutch)

The applicant has been active on the Netherlands market since
It imports industrial gases from Germany from its
1989.
parent company, Westfalen AG, or purchases them from other
producers.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 7 October 2002 by NV Hoek
Loos, established at Schiedam (Netherlands), represented by
J.J. Feenstra and B.F. van Harninxma thoe Slooten, lawyers.

By the contested decision, the Commission found that the
applicant had participated in concerted practices relating to
price increases, moratoria and minimum prices in respect of
the Netherlands market.

In support of its claim, the applicant states that the Com-
mission has produced no proof, or no sufficient proof, of any
infringement by it of Article 81(1) EC. Thus, the Commission
has not proved, or has not sufficiently proved,
that the
applicant took part in the concerted practices.

The applicant claims that the Court should:

(1) primarily, annul Article 3 of the contested decision, in so
far as it concerns the fine imposed on the applicant;

(2)

alternatively, in the exercise of its unfettered jurisdiction
and applying justice in an appropriate manner, substan-
tially reduce the fine imposed on the applicant;

(3) order the Commission to pay the costs.