Case T-99/04: Action brought on 16 March 2004 by AC-Treuhand AG against the Commission of the European Communities
Date: 2004-04-30
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), chemical industry, inter-company cooperation, organic chemical, oxide, restriction on competition

30.4.2004

EN

Official Journal of the European Union

C 118/43

Action brought on 25 February 2004 by Jamal Ouariachi
against the Commission of the European Communities

The applicant claims that the Court should:

(Case T-82/04)

(2004/C 118/94)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 25 February 2004 by Jamal Ouar-
iachi, residing in Rabat (Morocco), represented by France Blan-
mailland, lawyer.

The applicant claims that the Court should:

— order the defendant to pay a lump sum of EUR 150 000 to
the applicant as compensation for the non-material damage
which he has sustained;

— order the defendant to pay all the costs.

Pleas in law and main arguments

The applicant, who has both Moroccan and Spanish nationality
and resides in Morocco, has been divorced since 2000 and has
visiting rights in respect of his two children, who are in their
mother's custody. In 2002, the mother took the children to
Sudan where, according to the applicant, she was joining a
Commission official then working at the European Union Dele-
gation in Khartoum, Sudan.

The applicant claims that, in order to be able to take the chil-
dren away from their father and leave Moroccan territory to go
to Sudan, his ex-wife had an invitation from the European
Union Delegation in Khartoum, and that it is on the basis of
that invitation that the Sudanese consulate issued a visa.

Furthermore, the applicant claims that the official in question
usurped the applicant's identity by signing the two children's
school reports.

Action brought on 4 March 2004 by Marta Cristiana
Moren Abat against the Commission of the European
Communities

(Case T-92/04)

(2004/C 118/95)

(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 4 March 2004 by Marta Cristiana
Moren Abat, residing in Brussels (Belgium), represented by G.
Leibitsch, lawyer.

— declare void and annul the decision of the selection board
of open competition COM/A/1/02 of 22 April 2003 by
which the applicant was refused admission to the next
stage of the selection procedure on the basis of the results
of the preliminary test;

— declare void and annul the decision of the selection board
of the appointing authority of 30 January 2004 concerning
the applicant's complaint of 17 July 2003 under Article
90(2) of the Staff Regulations;

— order the defendant to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments correspond to those
submitted in Case T-91/04 Just v Commission.

Action brought on 16 March 2004 by AC-Treuhand AG
against the Commission of the European Communities

(Case T-99/04)

(2004/C 118/96)

(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 16 March 2004 by AC-Treuhand
AG, Zürich (Switzerland), represented by M. Karl, C. Steinle
and J. Drolshammer, lawyers.

The applicant claims that the Court should:

— annul the decision of the Commission of the European
Communities of 10 December 2003 (rectified on 7 January
2004)
in Case COMP/E-2/37.857 – Organic Peroxides
insofar as it relates to the applicant;

— order the Commission of the European Communities to

pay the costs.

C 118/44

EN

Official Journal of the European Union

30.4.2004

Pleas in law and main arguments:

The applicant claims that the Court should:

the Commission found that

By the contested decision,
the
applicant and five other undertakings and groups of undertak-
ings had infringed Article 81(1) EC by participating in a series
of agreements and coordinated practices on the market for
organic peroxides. A fine of EUR 1 000 was imposed on the
applicant.

The applicant submits that it neither produces nor distributes
organic peroxides and that it was at no time active on the
market affected by the infringement.
Its action is directed
against the Commission's finding that it infringed Article 81 by
providing services to three producers of organic peroxides. The
Commission's erroneous legal assessment is based on incorrect
factual allegations. The Commission adopted those false allega-
tions without criticism because the applicant was unable to
comment on them during the Commission's investigation. In
doing so, the Commission infringed the applicant's rights of
defence and acted in breach of the fundamental right to due
process.

Moreover, the applicant states that, although the Commission
imposed only a symbolic fine on it, it considers itself compelled
to bring an action against the decision in order to obtain legal
certainty for its business activities. In the words of the Commis-
sion, the decision sets a precedent by which the Commission
enters new territory. If the decision were to become final, there
would be a risk that, in future, services provided by the appli-
cant which have thus far been lawful and which do not restrict
competition would be prohibited and subject to a financial
penalty.

The applicant submits further that the Commission has acted
in breach of the principle of nullum crimen, nulla poena sine
lege since the applicant was neither a party, as an undertaking,
to the agreement restricting competition nor is it a group of
undertakings. With respect to the applicant, the Commission's
legal assessment is not only erroneous but also very unclear
and inconsistent. The contested decision is also inconsistent
with the need for clarity of measures and infringes the principle
of legal certainty and the principle of the protection of legiti-
mate expectations.

Action brought on 16 March 2004 by Peroxid-Chemie
GmbH & Co. KG against the Commission of the European
Communities

(Case T-104/04)

(2004/C 118/97)

(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 16 March 2004 by Peroxid GmbH
& Co. KG, Pullach (Germany), represented by M. Karl and C.
Steinle, lawyers.

— annul Article 2(a),

the
(c) and (d) of
Commission of the European Communities of 10 December
2003 (notified on 7 January 2004)
in Case COMP/E-2/
37.857 – Organic Peroxide;

the Decision of

— in the alternative, reduce the fines imposed on the applicant

in Article 2(c) and (d) of the decision;

— set the fine imposed on Akzo Nobel Polymer Chemicals
B.V., Akzo Nobel N.V., and Akzo Nobel Chemicals Interna-
tional B.V., as jointly liable companies at EUR 120.75
million;

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments:

By the contested decision the Commission held that the appli-
cant and five other undertakings (including Akzo) or groups of
undertakings infringed Article 81(1) EC by participating in a
series of agreements and concerted practices on the market for
organic peroxide. Two fines were imposed on the applicant. No
fine was imposed on Akzo.

The applicant is not objecting to the decision as a whole but
only to the fines imposed on it therein. The applicant takes the
view that the Commission should not have imposed two fines
on the applicant as a result of its participation in anti-competi-
tive practices on the market for organic peroxide. The Commis-
sion either infringed the prescription provisions or the prohibi-
tion on double penalties. Even if
the two penalties were
imposed on the applicant for two different infringements, the
first one (from 1971 to the end of August 1992) on the part of
the applicant was already time-barred. If, on the other hand,
both fines were imposed for one and the same continuous
infringement on the part of the applicant, then there was a
double penalty.

The applicant also argues that the Commission disregarded the
maximum limit in Article 15(2) of Regulation No 17 as the
fines imposed on the applicant by far exceeded 10 % of its
total turnover in the last trading year before adoption of the
decision. Furthermore, the Commission should not have classi-
fied the applicant as a second-time offender and should there-
fore not have been able to increase the basic amount of the
In so doing the
fine imposed on the applicant by 50 %.
Commission infringed the principle of
the presumption of
innocence and the applicant's rights of defence.