Case T-116/04: Action brought on 24 March 2004 by Wieland-Werke Aktiengesellschaft against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, market-sharing agreement, price agreement, restrictive trade practice, tube

30.4.2004

EN

Official Journal of the European Union

C 118/45

Finally, the applicant claims that the Commission failed to have
regard to the principle of equal treatment and the leniency
notice of 1996 by not imposing a fine on Axzo even though it
was proven to have played a decisive role in implementing the
unlawful conduct. In so doing the Commission afforded the
applicant's main competitor an unjustified financial advantage
worth millions which directly and individually concerned the
applicant.

Action brought on 19 March 2004 by Atlantic Container
Line AB, Grupo TMM SA De CV, Hanjin Shipping Co Ltd,
Hyundai Merchant Marine Co Ltd, Mediterranean Shipping
Co SA, Neptune Orient Lines Ltd, Orient Overseas
Container Line (UK) Ltd, P&O Nedlloyd Container Line
Limited and Sea-Land Service, Inc against the Commission
of the European Communities

(Case T-113/04)

(2004/C 118/98)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 March 2004 by Atlantic
Container Line AB, Gothenburg (Sweden), Grupo TMM SA De
CV, Tlalpan (Mexico), Hanjin Shipping Co Ltd, Seoul (South
Korea), Hyundai Merchant Marine Co Ltd, Seoul (South Korea),
Mediterranean Shipping Co SA, Geneva (Switzerland), Neptune
Orient Lines Ltd, Singapore (Republic of Singapore), Orient
Overseas Container Line (UK) Ltd, Levington (United Kingdom),
P&O Nedlloyd Container Line Limited, London, and Sea-Land
Service, Inc, Jacksonville (USA), represented by J. Pheasant, M.
Levitt and K. Nicholson, Solicitors.

The applicant claims that the Court should:

(a) order the Commission to pay to the applicants the sums set

out in Annex A.1 to this application;

(b) order the Commission to pay to the applicants interest at
the rate of the European Central Bank for capital refinan-
cing operations plus 2 %, or at such other rate as the Court
considers to be just in all the circumstances, payable in rela-
tion to the period from the date on which each individual
applicant's respective liability for costs in respect of its
bank guarantee ceased (as set out in Annex A.1) until the
date of the Court's judgment on this application;

(c) order the Commission to pay to the applicants interest at
such rate as the Court considers to be just in all the circum-
stances on such amounts as the Court orders to be paid
under sub-paragraphs (b) and (c) above as from the date of
the Court's judgment in this case until payment thereof;

(d) order that the decision contained in or evidenced by the

Commission's letter of 6 January 2004 be annulled;

(e) order the Commission to pay the applicants' costs.

Pleas in law and main arguments:

On 16 December 1998, the Commission imposed fines on the
applicants in respect of two infringements of Article 82 EC. By
judgment of 30 September 2003 (1), The Court of First Instance
annulled those fines in full.

The applicants allege that
they have suffered considerable
monetary loss as a direct result of the Commission's unlawful
imposition of the fines. According to the applicants, this loss
takes the form of
the costs incurred by the applicants in
providing bank guarantees in lieu of payment of the fines
unlawfully imposed and in maintaining those guarantees in
force from the date on which they were first obtained until the
date of their cancellation. The payment of a sum equal to such
costs is necessary in order to restore the applicants to the legal
position in which they would have been, had the Commission
not unlawfully imposed such fines.

The applicant seeks an order requiring the Commission to take
the ‘necessary measures’ required by Article 233 EC to comply
with the above-mentioned judgment, by paying each of the
applicants an amount equivalent to the costs incurred by each
applicant respectively in the provision of its bank guarantee,
together with the appropriate interest.

(1) Judgment of 30.9.2003 in joined Cases T-191/98 and T-212/98–T-
214/98, Atlantic Container Line and others/Commission (not yet
published in European Court Reports).

Action brought on 24 March 2004 by Wieland-Werke
Aktiengesellschaft against the Commission of the Euro-
pean Communities

(Case T-116/04)

(2004/C 118/99)

(Language of the Case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 24 March 2004 by Wieland-Werke
Aktiengesellschaft, Ulm (Germany), represented by R. Bechtold
and U. Soltész, lawyers.

The applicant claims that the Court should:

C 118/46

EN

Official Journal of the European Union

30.4.2004

— annul the Commission's decision in Case COMP/E-1/38.240

– Industrial Pipes;

Action brought on 24 March 2004 by the Vereniging
Werkgroep Commerciële Jachthavens Zuidelijke Rand-
meren and Others against the Commission of the Euro-
pean Communities

— in the alternative, reduce the fine imposed in the decision;

— order the Commission to pay the applicant's costs.

(Case T-117/04)

(2004/C 118/100)

(Language of the case: Dutch)

Pleas in law and main arguments:

By the contested decision the Commission found that the appli-
cant and five other undertakings had, by their participation in a
series of agreements and concerted practices in the form of
price-fixing and market sharing in the industrial pipe sector,
infringed Article 81(1) EC and, as from 1 January 1994, Article
53(1) of the EEA Agreement. The Commission fined the rele-
vant undertakings.

The applicant argues that the Commission did not take into
account proportionally the size of the undertakings concerned
in fixing the fine. The fine imposed on the applicant was
disproportionately high relative to its total
turnover. That
constitutes an infringement of the principle of proportionality
and contravenes the Commission's own guidelines. Further-
more, that method places small and medium-sized undertakings
at a disadvantage and therefore infringes the general principle
of equality and the principle of imposing penalties on a case-
by-case basis.

The applicant further argues that in setting the fine sufficient
account was not taken of the economic significance of the
infringement as the Commission did not correctly calculate
market volumes. Furthermore, the increase of 10 % per year set
by the Commission based on the duration of the infringement
was not properly reasoned.

economic

The applicant also argues that the Commission's method for
setting fines does not satisfy the requirement of certainty neces-
sary for the rule of law. In particular, the calculation of the
basic amount, which is made entirely without reference to the
undertaking
circumstances
individual
concerned, and the economic significance of the infringement
does not allow for any practical unlimited discretion on the
part of the Commission. Article 15 of Regulation No 17/62 is
not compatible with the requirement of certainty and thus
superior Community law. Finally, the Commission, in applying
the leniency notice of 1996, disadvantaged the applicant
without any discernible reason relative to other undertakings.

the

of

(Netherlands),

in Zeewolde

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 24 March 2004 by the Vereniging
Werkgroep Commerciële Jachthavens Zuidelijke Randmeren,
Jachthaven Zijl
established
Zeewolde B.V., established in Zeewolde (Netherlands), Wolder-
wijd II BV, established in Zeewolde (Netherlands), Jachthaven
Strand-Horst BV, established in Ermelo (Netherlands), Recreatie-
gebied Erkemederstrand V.O.F., established in Zeewolde (Neth-
erlands), Jachthaven and Campingbedrijf Nieuwboer B.V., estab-
lished in Bunschoten-Spakenburg (Netherlands) and Jachthaven
Naarden B.V., established in Naarden (Netherlands), represented
by T.R. Ottervanger and A.S. Bijleveld.

The applicants claim that the Court of First Instance should:

— annul Commission Decision C(2003)3890fin of 17
December 2003 concerning aid measures implemented by
the Netherlands in favour of non-profit making marinas in
the Netherlands and deem the aid granted to be unlawful
aid;

— order the Commission to pay the costs.

Pleas and main arguments

In the contested decision the Commission is of the opinion
that, in regard to the marinas concerned, there is no State aid
within the meaning of Article 87(1) EC. According to the
Commission, in regard to the Wieringermeer marina, there is
no benefit and that, in regard to the Nijkerk and Enkhuizen
marinas, trade between the Member States is not adversely
affected by the aid measure.

In support of their application, the applicants submit that the
Commission misapplied and misconstrued Article 87(1) EC.
They maintain first that the Commission manifestly erred in its
assessment in accepting that the aid measure in regard to the
marinas
trade
between the Member States. According to the applicants, the
marinas are active in an international tourist sector and do not
have a strictly local function.

in Enkhuizen and Nijkerk does not affect

They further submit that the Commission also manifestly erred
in its assessment in regard to the calculation of the amount of
State aid in favour of the marina in Nijkerk. According to the
applicants, the Commission wrongly proceeded on the basis
that the estimation was based on an unpolluted and well-main-
tained marina.

According to the applicants, there is also State aid in the case
of the Wieringermeer marina.