Case T-86/03: Action brought on 6 March 2003 by Holcim against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), cement, fine, inter-company cooperation, interest, redemption

10.5.2003

EN

Official Journal of the European Union

C 112/39

Action brought on 6 March 2003 by Holcim against the
Commission of the European Communities

Action brought on 5 March 2003 by Intech EDM AG
against the Commission of the European Communities

(Case T-86/03)

(2003/C 112/74)

(Language of the case: French)

(Case T-87/03)

(2003/C 112/75)

(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 6 March 2003 by Holcim, a
company established in Paris, represented by Marie-Pia Hutin-
Houillon, lawyer.

The applicant claims that the Court should:

— order the Commission to pay EUR 1 488 287,50, corre-
sponding to the amount of interest to be repaid to
Holcim, successor to the company Cedest;

— order it to pay, in addition, default interest for the period
running from 27 July 2000 until judgment is delivered in
the present action;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 March 2003 by Intech EDM AG,
Losone (Switzerland), represented by M. Karl, Rechtsanwalt.

The applicant claims that the Court should:

— annul the Commission’s decision of 17 December 2002

(Case COMP/E-2/37.667 -Special Graphite);

— declare that both those amounts are to bear interest from
the date judgment is delivered until full payment is made.

— in the alternative, reduce the fine imposed by Article 3(h)

of the decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

The defendant’s decision 94/815/EC imposed on Cedest SA a
fine of ECU 2 522 000 for infringing former Article 85(1) of
the EC Treaty. Following an action for annulment brought by
Cedest (Case T-38/95), the Court, by a judgment of 15 March
2000, annulled the contested decision so far as concerned
Cedest. As a result of that judgment, the defendant repaid to
Cedest the principal amount of the fine, but it rejected Cedest’s
request concerning payment of interest on that amount in
respect of the period running from 7 May 1995 (payment of
the fine by Cedest) to 27 July 2000 (repayment of the fine by
the defendant).

The applicant has brought the present application asserting
that it is the successor to Cedest following a merger. In support
of its application, the applicant claims that the payment of
default interest on the principal sum of the fine was a measure
to implement the judgment annulling the decision which the
defendant was required to adopt, even in the absence of any
fault on its part. According to the applicant, the defendant’s
failure in this respect enables it, by virtue of the second
paragraph of Article 233 of the EC Treaty, to bring an action
for compensation in terms of
the second paragraph of
Article 288 of the EC Treaty.

Pleas in law and main arguments

The applicant distributes isostatically pressed special graphite,
but does not itself produce it. Its activity in the European
special graphite market is based on a cooperation agreement
between itself and Ibiden Co. Ltd., a Japanese producer
of isostatic special graphite. The Commission accused the
applicant, Intech EMD BV (the former parent company of the
applicant), and various producers of isostatic special graphite
(including Ibiden) of taking part in a continuing agreement
and/or concerted practice on the market for special graphite
in the European Community and the European Economic
Area. According to the Commission’s finding, the applicant
participated from February 1994 to May 1997 at European
and regional level.

The pleas in law and main arguments are the same as in Case
T-74/03 (Intech EMD BV v Commission).