Case C-113/04 P: Appealbrought on 3 March 2004 by Technische Unie BVagainst the judgment of 16 December 2003 by theCourt of First Instance (First Chamber) in Joined Cases T-5/00 and T-6/00Nederlandse Federatieve Vereniging voor de Groothandel op ElektrotechnischGebied and Technische Unie BV v Commission of the European Communities, supportedby CEF City Electrical Factors BV and CEF Holdings Ltd.
Date: 2004-04-30
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), electrotechnology, restrictive trade practice, sale

C 106/28

EN

Official Journal of the European Union

30.4.2004

2 – Rectify the judgment in so far as it held that the overall
conduct of Adriatica,
following the meeting of 24
November 1993, was not such as validly to dissociate it
for the purposes of exonerating it from liability for the
collusive behaviour found to have taken place;

Appeal brought on 3 March 2004 by Marlines SA against
the judgment delivered on 11 December 2003 by the Fifth
Chamber of the Court of First Instance of the European
Communities in Case T-56/99 between Marlines SA and
the Commission.

3 – On the basis of the second plea in law set out below,
rectify the judgment in so far as it confirms the duration
of the infringement committed by Adriatica, reducing the
period of the infringement ascribed to it;

4 – On the basis of the first plea in law set out below, reduce
the penalty imposed on Adriatica by the Court of First
Instance;

5 – On the basis of the first, second and third pleas in law set
out below, reduce the penalty imposed on Adriatica in the
light of the lesser gravity and shorter duration of the
infringement committed by it;

6 – In the alternative, and independently of the other pleas in
law, rectify the judgment in so far as the Court of First
Instance erred in calculating the reduction in the fine to
be accorded to Adriatica, thereby reducing the fine;

(Case C-112/04 P)

(2004/C 106/48)

An appeal against the judgment delivered on 11 December
2003 by the Fifth Chamber of the Court of First Instance of the
European Communities in Case T-56/99 between Marlines SA
and the Commission was brought before the Court of Justice of
the European Communities on 3 March 2004 by Marlines SA,
represented by Dimitrios Papatheofanous and Adamantia
Anagnostou, of the Athens Bar.

The appellant claims that the Court should:

— allow the appeal;

— set aside the contested judgment;

— make a decision in accordance with the law;

— order the Commission to pay the costs before both courts.

7 – Order the Commission to pay the costs at first instance

and on appeal.

Grounds of appeal

Pleas in law and main arguments:

— Infringement of Article 81 of the Treaty and erroneous
application of the law in respect of the failure to assess the
consequences, in Adriatica's case, of the incorrect definition
of the relevant market given by the Commission;

— Infringement of Article 81 of the Treaty and erroneous
application of the law in the assessment of the existence of
the requirements for the dissociation of Adriatica from the
infringement;

— Infringement of Article 81 of the Treaty and Article 19 of
Regulation No 4056/86 (1) in determining the duration and
gravity of the infringement ascribable to Adriatica;

— In the alternative, infringement of Article 81 of the Treaty
and Article 19 of Regulation No 4056/86 and a failure
adequately to state reasons in determining the fine to be
imposed on Adriatica.

(1) OJ 1986 L 378 of 31.12.1986, p. 4.

1. Breach of the duty to state reasons.

2. Failure to observe the rules of logic and lessons derived

from common experience.

3. Unreasoned (or implicit) rejection of the applicant's request

that witnesses be examined.

Appeal brought on 3 March 2004 by Technische Unie BV
against the judgment of 16 December 2003 by the Court
of First Instance (First Chamber) in Joined Cases T-5/00
and T-6/00 Nederlandse Federatieve Vereniging voor de
Groothandel op Elektrotechnisch Gebied and Technische
Unie BV v Commission of the European Communities,
supported by CEF City Electrical Factors BV and CEF
Holdings Ltd.

(Case C-113/04 P)

(2004/C 106/49)

An appeal was brought before the Court of Justice of the Euro-
pean Communities on 3 March 2004 by Technische Unie BV,
represented by P.V.F. Bos and C. Hubert, advocaten, against the
judgment of 16 December 2003 delivered by the Court of First
Instance (First Chamber) in Joined Cases T–5/00 and T-6/00
Nederlandse Federatieve Vereniging voor de Groothandel op Elektro-
technisch Gebied and Technische Unie BV v Commission of the Euro-
pean Communities, supported by CEF City Electrical Factors BV
and CEF Holdings Ltd.

30.4.2004

EN

Official Journal of the European Union

C 106/29

The appellant claims that the Court should:

(1) set aside the judgment of 16 December 2003 by the Court
of First Instance of the European Communities in Joined
Cases T–5/00 and T-6/00, at least in so far as it relates to
Case T-6/00, and, regard being had to the form of order
sought under (2), dispose of the case itself or, in the alter-
native, set the judgment aside and refer the matter back to
the Court of First Instance for further consideration;

(2) annul in its entirety, or at least in part, the decision of the
European Commission of 26 October 1999 addressed to
Technische Unie, or at least, ruling afresh, decide to reduce
substantially the fine imposed on the appellant; and

(3) order the European Commission to pay all costs of the
proceedings, including those of the proceedings before the
Court of First Instance.

Pleas in law and main arguments:

In the first place, the Court of First Instance infringed EC law
and/or the European Convention on Human Rights, and at any
rate provided incomprehensible reasoning in that regard,
in
ruling that the fact that the period within which the procedure
was concluded went beyond what was reasonable could not
justify annulment of the Commission decision or an additional
reduction in the fine.

Action brought on 3 March 2004 by the Commission of
the European Communities against the Federal Republic of
Germany

(Case C-114/04)

(2004/C 106/50)

the Federal Republic of Germany was
An action against
brought before the Court of Justice of the European Commu-
nities on 3 March 2004 by the Commission of the European
Communities, represented by Dr Bernhard Schima of the Legal
Service of the Commission, acting as Agent, with an address
for service in Luxembourg.

The applicant claims that the Court should:

1. declare that by failing to give parallel importers an appro-
priate period in which to liquidate their stock upon the
withdrawal of a licence for a plant protection reference
product the Federal Republic of Germany has failed to fulfil
its obligations under Article 28 EC;

2. order the Federal Republic of Germany to pay the costs of

the proceedings.

Pleas in law and main arguments

Second, the Court of First Instance breached Community law,
inasmuch as there is internal inconsistency and thus a lack of
proper reasoning with regard to the equivocal manner in
which it attached significance to the date on which the
warning letter was issued.

The Commission is of the opinion that the measures instituted
by the Biologische Bundesanstalt (Federal Biological Agency)
are not compatible with the principle of free movement of
goods laid down in Articles 28 to 30 EC and the relevant case-
law.

Third, the Court of First Instance demonstrated misconstruction
of the law, or at any rate provided incomprehensible reasoning,
in ruling that the Commission would have had good grounds
for
the infringements
finding Technische Unie liable for
referred to in Articles 1 and 2 of the decision.

Fourth, the Court of First Instance demonstrated misconstruc-
tion of the law, or at any rate provided defective reasoning, in
treating earlier the breaches referred to in Articles 1 and 2 of
the decision as (continuing) breaches over the periods taken
into account and in subsequently taking into account, for the
duration of the breach referred to in Article 3 of the decision,
the same periods as those which related to the breaches
mentioned earlier.

Fifth, the Court of First Instance demonstrated misconstruction
of the law, or at any rate provided inadequate reasoning, in not
allowing an additional reduction in the fine, notwithstanding
the misappraisal of the duration of the breaches and the infrin-
gement of the principle that proceedings must be concluded
within a reasonable period.

the licence for

The withdrawal of
the reference product
without the provision of any period for liquidation of current
stocks held by the parallel importers, with the result that the
parallel imported products could no longer be sold, constituted
an obstacle to the free movement of goods as laid down in the
Court’s case-law and therefore was fundamentally incompatible
with Article 28 EC.

A parallel importer needs to purchase large quantities of the
relevant product abroad in order to offer the product for sale
on the market of the importing State at a competitive price and
to satisfy his clients’ orders. For this reason it is unavoidable
that the parallel
importer should hold a certain amount of
stock. The automatic disappearance of the possibility of selling
that stock after the withdrawal of the licence for the reference
product undoubtedly amounts to a quantitative restriction on
imports.

This obstacle to trade in respect of the parallel import of plant
protection products is not justifiable, since the withdrawal of
the licence was not made on one of the grounds laid down in
Article 30 EC and in particular not for reasons of public health.