Case T-27/03: Action brought on 30 January 2003 by S.P. S.p.A against Commission of the European Communities
Date: 2003-03-22
Institutions: Court of First Instance
Subjects: European Commission, action for failure to act, building industry, fine, restriction on competition

22.3.2003

EN

Official Journal of the European Union

C 70/31

Action brought on 28 January 2003 by LEP International
BV against the Commission of the European Communities

(Case T-26/03)

(2003/C 70/49)

(Language of the case: Dutch)

The applicant states, moreover, that it acted in good faith and
that it was not to blame for the irregularities. Nor, according
to the applicant, can any manifest negligence be imputed to it.
The fact that the applicant did not take out insurance does
not, according to it, constitute negligence. On the contrary,
businesses are free to decide whether and, if so, how they
cover themselves against possible risks.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (OJ No L 302,
19.10.1992, p. 1).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 January 2003 by LEP Inter-
national BV, established in Schiphol-Rijk (Netherlands), rep-
resented by Cornelis de Bie and Paul Bakker.

The applicant claims that the Court should:

— annul the decision of the European Commission.

Action brought on 30 January 2003 by S.P. S.p.A against
Commission of the European Communities

(Case T-27/03)

(2003/C 70/50)

Pleas in law and main arguments

(Language of the case: Italian)

The applicant seeks the annulment of the Decision of the
European Commission of 7 October 2002 in case REM 08/
003 concerning an application for remission of import duties
under Article 239 of Regulation (EEC) No 2913/92 (1).

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 30 January 2003 by S.P. S.p.A.,
represented by Gianluca Belotti and Nicola Pisani, lawyers.

The applicant drew up, on the instructions of Hector Inter-
national Tpt. Ltd., documents for the transport of meat to
Morocco under the external Community transit procedure.
However, the applicant states that,
through acts of third
parties, that transit operation was not properly discharged, as
a result of which the applicant, as the holder of the documents,
was requested to pay the customs duties owed. It therefore
submitted an application to the Netherlands authorities for
remission of the import duties owed. The application was
in the
forwarded to the Commission, which rejected it
contested decision.

The applicant claims that the Court should:

— declare non-existent and/or null and void or, in any event,

annul the contested decision;

— in the alternative, annul or reduce the penalty imposed

on S.P.;

— in any event, order the defendant to pay the costs.

The applicant argues that the contested decision infringes
Article 239 of Regulation (EEC) No 2913/92, that it assesses
the facts incorrectly and that it is based on an inadequate
statement of reasons.

Pleas in law and main arguments

According to the applicant, a special circumstance exists since
the customs authorities knew at an early stage that the external
transit procedure would not be discharged and did not inform
the applicant of this. The applicant further argues that a special
circumstance exists inasmuch as a Spanish official may have
been involved.

Among various grounds of annulment, the applicant alleges
lack of competence of the Commission to adopt on 17 Decem-
ber 2002 a decision based on Article 65 of the ECSC Treaty
when that treaty expired on 22 July 2002, resulting in the
nullity of
the decision. According to the applicants, the
Commission did not have the power to adopt the abovemen-
tioned decision in the absence of an express decision to that
effect on the part of the Member States.

C 70/32

EN

Official Journal of the European Union

22.3.2003

its application,

In support of
the applicant contests the
economic approach adopted in relation to the facts by the
Commission which, on the one hand, defined as the relevant
market the Italian geographic market but which, on the other
hand, completely overlooked the fact that the average price of
reinforced concrete in Italy has always been, on average, less
than that in the other States.

The applicant claims that the Court should:

— annul the decision of 11 November 2002 of the Director
General of the European Anti-Fraud Office (OLAF) which,
as an internal service of the Commission of the European
Communities, declares inadmissible the complaint lodged
by the Junta de Andalucía.

Furthermore, S.P. contests the use of documents by the
Commission to substantiate its charges,
in particular the
memorandum of a partner undertaking which, in the Com-
mission’s view, provided useful information to understand the
way in which the accused undertaking operated, without such
documents having been notified to the applicant during the
proceeding. Moreover, although the Commission was in
possession of them, it failed to mention that it had made use
of such cooperation, preventing the applicant from adopting a
position in good time in relation to the charges made against
it. In that respect also, the applicant seeks the annulment of
the decision on the ground of a serious breach of the rights of
defence.

S.P. further alleges error of law, in particular the misapplication
of Article 65 ECSC, claiming that the contested objections do
not contain sufficient evidence to support the existence of an
agreement or concerted practices.

Finally, S.P. further contests the methods adopted by the
Commission when determining the fines to be imposed, in
particular the multiplier and the increment linked to the
allegedly uninterrupted duration of the alleged infringements
and to the alleged extreme seriousness, which has not been
proven, of the infringements.

Action brought on 27 January 2003 by Comunidad
Autónoma de Andalucía against Commission of the Euro-
pean Communities

(Case T-29/03)

(2003/C 70/51)

(Language of the case: Spanish)

Pleas in law and main arguments

The applicant in the present proceedings contests the rejection
of the complaint submitted by Counsellor for Agriculture and
Fisheries to the Director General of the Anti-Fraud Office
(OLAF) after becoming aware of the existence of Report IO/
2000/7057 concerning the investigations carried out by OLAF
into possible irregularities in the olive oil sector in Spain,
concentrating in particular on the territory of the Comunidad
Autónoma de Andalucía.

In support of its arguments, the applicant alleges:

— infringement of the principles of legality, in that OLAF’s
activities covered areas over which there is no judicial
oversight, and of equality, inasmuch as such conduct
discriminated against any legal or natural person who is
not an official, agent or staff of the Community insti-
tutions, who alone may lodge administrative complaints
against OLAF’s conduct.

— infringement of the fundamental right of defence.

— that OLAF must accept the complaint in issue by analogy
with the provisions of Article 14 of Regulation No 1073/
1994, and reply to the substantive questions raised in the
aforementioned complaint.

Action brought on 30 January 2003 by The General
Workers Union in Denmark (Specialarbejderforbundet i
Danmark ‘SID’) against the Commission of the European
Communities

(Case T-30/03)

(2003/C 70/52)

(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 27 January 2003 by Comunidad
Autónoma de Andalucía, Seville (Spain), represented by Car-
men Carretero Espinosa de los Monteros, lawyers.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the