Case T-410/03: Action brought on 18 December 2003 by Hoechst AG against the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, inter-company agreement

6.3.2004

EN

Official Journal of the European Union

C 59/23

In this regard, she points out that the letter by which she was
notified of the contested decision bears the date of 20 January
2003, that is to say three days before the date on which the
oral test in question actually took place. That error was later
corrected.

In support of her claims, the applicant pleads:

— breach of the notice of the competition in question and a
defect in the procedure, in that the selection board could
not evaluate her on her oral abilities until
it had
interviewed her;

— misuse of powers given that the selection board was

biased;

— breach of the principle of equal treatment; and

— breach of the requirement to state grounds for a decision.

(1) [2002] ECR-SC I-A-37, II-161.

Pleas in law and main arguments

The applicant was an official of the European Parliament when
he was transferred to OHIM on 1st October 1998. By the
contested decision, OHIM informed the applicant of his
number of merit points for the 2002 promotion year. When
calculating those points, OHIM limited the applicant’s length
of service in the grade to five years and as a result did not take
account of the period from 1 January 1991 to 31 October
1993.

In support of his claim for annulment, the applicant submits,
firstly, that there was a breach of Article 1 of Decision ADM
02-39 rev of OHIM concerning the career and promotion of
officials and temporary staff, and of the principles of legality,
legal certainty and equal treatment. He submits, furthermore,
that that there was a breach of the Staff Regulations in so far
as the principles applicable to transfers between institutions
were not adhered to and that
the applicant’s legitimate
expectations when he accepted the transfer were not upheld.
The applicant submits, finally, that there was a breach of the
requirement to state the reasons for the disputed decision and
of the principle of proportionality.

Action brought on 11 December 2003 by Manuel Simões
dos Santos against the Office for Harmonisation in the
Internal Market

Action brought on 18 December 2003 by Hoechst AG
against the Commission of the European Communities

(Case T-409/03)

(2004/C 59/38)

(Language of the case: French)

(Case T-410/03)

(2004/C 59/39)

(Language of the case: German)

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 11 December 2003 by
Manuel Simões dos Santos, resident
in Alicante (Spain),
represented by Antonio Creus Carreras, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 18 December 2003 by Hoechst AG, Frankfurt
am Main (Germany), represented by M. Klusmann and V. Turn-
er, lawyers.

The applicant claims that the Court should:

— annul the implied decision of the Appointing Authority
rejecting the complaint made by the applicant and the
decision of 14 February 2003 fixing his initial number of
merit points for the 2002 promotion year in so far as it
limits his period of service in the European Parliament;

The applicant claims that the Court should:

— annul the contested decision in so far as it concerns the

applicant;

— in the alternative, make an appropriate reduction in the
amount of the fine imposed on the applicant in the
contested decision;

— order the defendant to pay all the costs of the case.

— order the defendant to pay the costs.

C 59/24

EN

Official Journal of the European Union

6.3.2004

Pleas in law and main arguments

By Decision K(2003) 3426 of 1 October 2003 the Commission
found that the applicant and four other undertakings had
infringed Article 81(1) EC by virtue of their participation in a
complex, single and continuing agreement and in concerted
practices in the sorbate sector, through which they agreed
inter alia target prices. A fine of EUR 99 million was imposed
on the applicant.

The applicant challenges the decision and claims that the
Commission infringed the principle of good administration by
unlawfully giving preferential treatment to another undertak-
ing in the administrative procedure. Both undertakings cooper-
ated with the Commission at the end of 1998 and the applicant
claims that the other undertaking has been given an unlawful
advantage.

The applicant complains that there were irregularities in the
conduct of the procedure at that time and also that despite its
requests the Commission has refused to grant it access to
Commission documents. The Commission has already allowed
access to some internal documents in the context of general
inspection of documents and it can therefore no longer rely
on general confidentiality of internal documents connected
therewith. Furthermore, a complete version of the decision, or
a version which is sufficiently comprehensible, has not been
supplied to the applicant, information in the first part of the
decision having been blanked out without justification, thus
making it impossible inter alia to comprehend how the fines
were calculated.

Moreover, the applicant claims that there were errors of
assessment and of law in connection with the fixing of the
fine. It complains that the basic amount is disproportionate
because it has not been treated in the same way as other
participants in the procedure.
It also complains that the
Commission wrongly inferred that its actions had detrimental
consequences and that ‘senior management’ participated in the
cartel. The applicant submits that the basic amounts of the
fine calculated according to groups are wrong because, in
particular,
the Japanese
manufacturers have not been taken into account. The applicant
also challenges, on the merits, the further additional fine of
30 % for its alleged position as ‘ringleader’ and also the further
addition of 50 % for recidivism. With regard to appraisal of its
cooperation, the applicant complains that the Commission
wrongly failed to classify it as the first cooperating undertaking.

the additional cartel activities of

Finally, the applicant complains that owing to the Com-
mission’s lack of activity in the first stage of the procedure, the
length of the procedure was unreasonable within the meaning
of Article 6(1) ECHR and complains that the order to desist is
unlawful because the relevant business has been sold in the
meantime.

Action brought on 15 December 2003 by Shandong
Reipu Biochemicals Co. Ltd. against the Council of the
European Union

(Case T-413/03)

(2004/C 59/40)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 15 December 2003 by Shandong Reipu
Biochemicals Co. Ltd., Shandong, (People’s Republic of China),
represented by O. Prost, lawyer.

The applicant claims that the Court should:

— annul Article 1 of Council Regulation (EC) No 1656/
2003 of 11 September 2003 imposing a definitive anti-
dumping duty and collecting definitely the provisional
duty imposed on imports of para-cresol originating in
the People’s Republic of China (OJ 2003 L 234, p. 1) as
long as it imposes a 12,3 % duty on imports of products
manufactured by the applicant;

— ask the Council to pay the costs.

Pleas in law and main arguments

Moreover, the applicant complains that a previous penalty
imposed in the United States in regard to the same matter was
not taken into account and relies in that regard on the principle
of ne bis in idem which also applies in relationships with non-
member countries. Although that principle does not preclude
further proceedings, it requires prior penalties to be taken into
account.

The applicant is established in the People’s Republic of China
and produces and exports para-cresol to the European Union.
The applicant contests Regulation (EC) No 1656/2003 which
imposes a definitive duty on imports of para-cresol, originating
in the People’s Republic of China.