Case C-552/03 P: Appeal brought on 29 December 2003 by Unilever Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd, against the judgment delivered on 23 October 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-65/98 between Van den Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), competition, distributive trades, inter-company agreement

6.3.2004

EN

Official Journal of the European Union

C 59/13

As a result of its failure to fulfil those obligations, Spain must
pay default interest, in accordance with Community rules on
own resources. According to settled case-law, there is an
indissoluble link between the obligation to establish the
Community’ own resources, the obligation to credit them to
the Commission’s account within the prescribed time-limit
and, finally, the obligation to pay default interest, which is
owed for the whole period of delay and is payable regardless
of the reason for the delay in making the entry in the
Commission’s account. Consequently, the reference made by
the Spanish authorities to their internal procedures, has no
influence as regards its obligation to pay default interest. In
order to enable the Commission to calculate the default
interest, Spain must communicate to it all the information
necessary on the periods which elapsed between the entry in
the accounts, as the relevant time for the establishment of own
resources, according to the provisions of Community law on
the collection of those resources, and the practice followed by
the Spanish authorities. The Kingdom of Spain has failed to
fulfil that obligation.

(1) Council Regulation (EEC) No 2913 of 12 October 1992 estab-
lishing the Community Customs Code (OJ 1992 L 302, p. 1).
(2) Council Regulation (EEC) No 1854/89 of 14 June 1989 on the
entry in the accounts and terms of payment of the amounts of
import duties or export duties resulting from a customs debt (OJ
1989 L 186, p. 1).

(3) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989
implementing Decision 88/376/EEC, Euratom on the system of
the Communities own resources (OJ 1989 L 155, p. 1).

(4) Council Regulation (EC, Euratom) No 1150/2000 of 22 May
2000 implementing Decision 94/728/EC, Euratom on the system
of the Communities own resources (OJ 2000 L 130, p. 1).

— 2001/12/EC of the European Parliament and of the
Council of 26 February 2001 amending Council
Directive 91/440/EEC on the development of the
Community’s railways (1);

— 2001/13/EC of the European Parliament and of the
Council of 26 February 2001 amending Council
Directive 95/18/EC on the licensing of railway
undertakings (2);

— 2001/14/EC of the European Parliament and of the
Council of 26 February 2001 on the allocation of
railway infrastructure capacity and the levying of
charges for the use of railway infrastructure and
safety certification (3);

and in any event by failing to notify the provisions in
question to the Commission, the Hellenic Republic has
failed to fulfil its obligations under those directives.

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directives into
national law expired on 15 March 2003.

(1) OJ L 75 of 15.03.2001, p. 1.
(2) OJ L 75 of 15.03.2001, p. 26.
(3) OJ L 75 of 15.03.2001, p. 29.

Action brought on 23 December 2003 by the Commission
of the European Communities against the Hellenic
Republic

(Case C-550/03)

(2004/C 59/22)

Appeal brought on 29 December 2003 by Unilever
Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd,
against the judgment delivered on 23 October 2003 by
the Fifth Chamber of the Court of First Instance of the
European Communities in case T-65/98 between Van den
Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the
Commission of the European Communities

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 23 December
2003 by the Commission of the European Communities,
represented by Georgios Zavvos and Wouter Wils, of its Legal
Service.

(Case C-552/03 P)

(2004/C 59/23)

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directives:

An appeal against the judgment delivered on 23 October 2003
by the Fifth Chamber of the Court of First Instance of the
European Communities in case T-65/98 (1) between Van den
formerly HB Ice Cream Ltd, and the
Bergh Foods Ltd,

C 59/14

EN

Official Journal of the European Union

6.3.2004

Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
29 December 2003 by Unilever Bestfoods (Ireland) Ltd,
formerly HB Ice Cream Ltd, established in Dublin (Ireland),
represented by M. Nicholson, M. Rowe, M. Biesheuvel and
M. de Grave, lawyers, with an address for service in Luxem-
bourg.

adequate reasons as to why Bronner is not relevant to the
present case.

(1) OJ C 234, 25.07.1998, p. 28.

The Appellant claims that the Court should:

(a)

(b)

set aside — in its entirety or partially — the judgment of
the Court of First Instance (Fifth Chamber) of 23 October
2003 in case T-65/98, excluding paragraph 3 of the
operative part of the judgment; and

annul — in its entirety or partially — the Commission
Decision in Case Nos. IV/34.073, IV/34.395 and IV/
35.946 relating to a proceeding under Articles 81
(formerly 85) and 82 (formerly 86) of the Treaty (Van
den Bergh Foods Ltd) or, alternatively, refer the case back
to the Court of First Instance; and

(c)

order the Commission to pay the Applicant’s costs at first
instance and in this Application on appeal.

Pleas in law and main arguments

The Appellant submits that the Court of First Instance erred in
law by concluding that the distribution agreements of Van den
Bergh Foods Ltd (formerly HB Ice Cream Ltd) are liable to have
an appreciable effect on competition for the purposes of
Article 81(1) of the Treaty and contribute significantly to a
foreclosure of the market.

The Appellant also submits that the Court of First Instance
erred in law when applying Article 81(3) of the Treaty. It
wrongly applied the relevant burden and standard of proof
and, in so doing, rendered its judgment inadequatly reasoned.

Finally, it is submitted that the Court of First Instance erred in
law in two respects when applying Article 82 of the Treaty:

— it drew legal inferences which were unwarranted and
inadequately reasoned and cannot, therefore, support a
conclusion as to the abusive nature of the inducement;
and

Appeal brought on 30 December 2003 by the Panhellenic
Union of Cotton Ginners and Exporters against the
judgment delivered on 16 October 2003 by the Fifth
Chamber (Extended Composition) of the Court of First
Instance of the European Communities in case T-148/
00 (1) between the Panhellenic Union of Cotton Ginners
and Exporters and the Commission of the European
Communities, supported by the Hellenic Republic

(Case C-553/03 P)

(2004/C 59/24)

An appeal against the judgment delivered on 16 October 2003
by the Fifth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in case T-148/00
between the Panhellenic Union of Cotton Ginners and
Exporters and the Commission of the European Communities,
supported by the Hellenic Republic, was brought before the
Court of Justice of the European Communities on 30 December
2003 by the Panhellenic Union of Cotton Ginners and
Exporters, established in Thessaloniki (Greece), represented by
K. Adamantopoulos and J. Gutiérrez Gisbert, lawyers, with an
address for service in Luxembourg.

The Appellant claims that the Court should:

1.

2.

set aside the judgment of the Court of First Instance of
16 October 2003 in case T-148/00 which dismissed the
original application of the Appellant before the Court of
First Instance as inadmissible and ordered the Appellant
to bear its own costs and those of the European Com-
mission in relation to the action before the Court of First
Instance;

as requested originally before the Court of First Instance,
annul Article 1 of the Commission Decision (2000/206/
EC) (2) on an aid scheme applied in Greece to cotton by
the Greek Cotton Board, in so far as it only declares
Article 30(3) of Law 2040/92 of 17/23.4.1992, and not
Article 30(1) as well, incompatible with the common
market; and

— it failed to apply the legal principles advanced by the
Court in Bronner or, in the alternative, failed to give

3.

order that the costs of and occasioned by these proceed-
ings, and those before the Court of First Instance, be
borne by the European Commission.