Case T-90/03: Action brought on 6 March 2003 by Fédération des Industries Condimentaires de France and Others against the Commission of the European Communities
Date: 2003-05-10
Institutions: Court of First Instance
Subjects: EC action to establish liability, European Commission, United States, World Trade Organisation, condiment, import, indemnification, restriction on competition

C 112/40

EN

Official Journal of the European Union

10.5.2003

Action brought on 6 March 2003 by Fédération des
Industries Condimentaires de France and Others against
the Commission of the European Communities

(Case T-90/03)

(2003/C 112/76)

(Language of the case: French)

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 the Fédération
des Industries Condimentaires de France, established in Paris,
the Confédération Générale des Producteurs de Lait de Brebis
et des Industriels de Roquefort, established in Millau (France),
the Comité Économique Agricole Régional Fruits et Légumes
de Bretagne, established in St-Martin-des-Champs (France) and
the Comité Interprofessionnel des Palmipèdes à Foie Gras,
established in Paris, represented by Michel-Jean Jacquot and
Olivier Prost, lawyers.

The applicants claim that the Court should:

— order the Commission to compensate the applicants
(including their members who have suffered damage) for
the material damage suffered in the period from 29 July
1999 to 9 July 2002, amounting to EUR 9 805 251 for
the Fédération des Industries Condimentaires de France,
EUR 5 190 000 for the Confédération Générale des
Producteurs de Lait de Brebis et des Industriels de
Roquefort, EUR 33 451 860 for the Comité Économique
Agricole Régional Fruits et Légumes de Bretagne and
EUR 4 925 000 for the Comité Interprofessionnel des
Palmipèdes à Foie Gras, or any other amount which the
Court may deem appropriate or as may be increased in
the course of proceedings;

— order the Commission to compensate the applicants
(including their members) for the non-material damage
suffered in the period from 29 July 1999 to 9 July
2002, amounting to EUR 200 000 for each of the four
applicants, or any other amount which the Court may
deem appropriate or as may be increased in the course of
proceedings;

— order the Commission to compensate the applicants
(including their members who have suffered damage) for
the material damage suffered as a result of the decision
adopted on 9 July 2002 (and until
the applicants’
products are removed from the list of American
measures), amounting to EUR 3 268 417 per year for the
Fédération des Industries Condimentaires de France,
EUR 1 730 000 per year for the Confédération Générale
des Producteurs de Lait de Brebis et des Industriels de
Roquefort, EUR 11 150 620 per year for the Comité

Économique Agricole Régional Fruits et Légumes de
Bretagne and EUR 1 641 666 per year for the Comité
Interprofessionnel des Palmipèdes à Foie Gras, or any
other amount which the Court may deem appropriate or
as may be increased in the course of proceedings;

— order the Commission to compensate the applicants
(including their members) for the non-material damage
suffered as a result of the decision adopted on 9 July
2002 (and until the applicants’ products are removed
from the list of American measures), amounting to
EUR 200 000 for each of the four applicants (harm to
their image in the United States) and EUR 200 000 for
each of the four applicants (harm to their credibility), or
any other amount which the Court may deem appropriate
or as may be increased in the course of proceedings.

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The purpose of the present application is to seek compensation
for the damage allegedly caused by the Commission’s purport-
ed failure to take action in the face of retaliatory measures
taken by the United States of America in the context of the
WTO following the adoption by the Community of legislation
prohibiting the importation of certain substances having a
hormonal action (1). Those measures are applied selectively.
Thus, so far as concerns mustard, Roquefort cheese, shallots
and foie gras (with which the present application is concerned),
the United States measures applied to all the Member States
except the United Kingdom.

The Commission’s failure to take action arises from its decision
terminating the examination procedures concerning obstacles
to trade, within the meaning of Council Regulation (EC)
No 3286/94, consisting of trade practices maintained by the
United States of America in relation to imports of prepared
mustard (2). The applicants have brought an action (3) for the
annulment of that decision.

The applicants take the view that the non-contractual liability
of the Commission is incurred as a result of:

— its failure to take action following the adoption by the
United States of the measures in issue. They plead in that
respect infringement of Articles 113 and 211 EC, stating
that, by its inaction, the Commission tacitly approved the
United States measures, thus also putting in question the
logic itself of the common commercial policy;

10.5.2003

EN

Official Journal of the European Union

C 112/41

— the adoption of its decision of 9 July 2002. In that
respect, the applicants refer to the pleas in law and
arguments put forward in Case T-317/02, cited above.1

( 1) See, in particular, Council Directive 96/22/EC of 29 April 1996
concerning the prohibition on the use in stockfarming of certain
substances having a hormonal or thyrostatic action and of ß-
agonists, and repealing Directives 81/602/EEC, 88/146/EEC and
88/299/EEC (OJ 1996 L 125, p. 3).

( 2) OJ 2002 L 195, p. 72.
( 3) Case T-317/02 (OJ 2002 C 323, p. 37).

Action brought on 10 March 2003 by SGL Carbon AG
against the Commission of the European Communities

(Case T-91/03)

(2003/C 112/77)

(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 10 March 2003 by SGL Carbon
AG, Wiesbaden (Germany), represented by M. Klusmann and
P. Niggemann, Rechtsanwälte.

The applicant claims that the Court should:

— annul the contested decision in so far as the applicant is

concerned;

— in the alternative, reduce appropriately the amount of the
fine imposed on the applicant in the contested decision;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant manufactures various graphite products, includ-
ing ‘specialty graphite’. The defendant complained that the
applicant and other manufacturers and distributors of isostatic
specialty graphite had participated in a continuing agreement
and/or concerted practices which affected the market for
isostatic specialty graphite in the European Community and
the European Economic Area. The alleged infringements relate
primarily to the period from July 1993 to February 1998. In
addition, the defendant also alleged that the applicant and
UCAR, another manufacturer of specialty graphite, had com-

mitted a further infringement of Article&nbsp:81(1) EC inas-
much as they had participated, in the period from February
in agreements and concerted
1993 to November 1996,
practices in the extruded specialty graphite sector. By the
contested decision, the defendant imposed on the applicant a
fine of EUR 18.94 million for the isostatically pressed specialty
graphite sector and a fine of EUR 8.81 million for the extruded
specialty graphite sector.

The applicant relies on five pleas in law:

— Breach of the principle of non bis in idem and the
principle of proportionality. The applicant argues that the
defendant infringed the prohibition of double jeopardy
inasmuch as it failed to take into consideration in its
decision the fines already imposed in North America on
the international part of the cartel, and inasmuch as it
carried out a second administrative-fine proceeding
in the graphite
against, among others, the applicant
electrode sector. In the alternative, the applicant argues
that, even if a second proceeding might have been
lawful, the defendant should nevertheless have taken into
account the fines already imposed when determining the
amount of the fine.

— Breach of the principle of the right to a fair hearing and
of the applicant’s rights of defence. The applicant argues
that, in its decision, the defendant surprisingly re-evalu-
ated the contributions of LCL and the applicant to the
infringement and therefore deprived the applicant of the
opportunity to state its views on this matter adequately
during the administrative proceeding. The defendant also
appointed case handlers who did not have a sufficient
command of the German language, with the result that
the defendant failed to give full consideration to the
applicant’s submissions.

— Infringement of essential procedural requirements and of
the obligation to state reasons under Article 253 EC
inasmuch as the defendant took as the basis for its
decision incorrect and defective market data.

— Infringement of Article 15(2) of Regulation No 17/62/
EEC on account of allegedly erroneous determination of
the fines. The applicant argues that, in determining the
fines, the defendant took account of the gravity of the
offence in an inadmissible way, wrongly imputed to the
applicant the role of a cartel leader, disregarded the upper
limit of penalties, failed to take into consideration the
applicant’s ability to pay and the supposed absence of
any requirement of a deterrent effect, and failed to give
due recognition to the applicant’s contributions by way
of cooperation.

The applicant further claims that the interest imposed on the
fine is unlawful.