Action brought on 1 April 2004 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities (Case T-127/04)
Date: 2004-05-29
Institutions: Court of First Instance
Subjects: European Commission, appeal to the Court (EU), competition law, economic concentration, iron and steel industry, tube

29.5.2004

EN

Official Journal of the European Union

C 146/5

COURT OF FIRST INSTANCE

Action brought on 18 March 2004 by Railion Deutschland
AG against the Commission of the European Communities

(Case T-109/04)

(2004/C 146/06)

(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 18 March 2004 by Raillion
Deutschland AG, Mainz (Germany), represented by H. Johlen,
lawyer.

The applicant claims that the Court should:

The applicant also claims that the decision infringes Article
239 of the Community Customs Code. The decision denies the
existence of ‘special circumstances’ on grounds that are irrele-
vant or are based on facts that are not
fully established.
Because of the simplification of rail transport procedures, the
applicant was exposed to greater risk of deception by fraud in
relation to the goods transported. It could not eliminate or
control that risk on its own. In particular, it was impossible in
practice to inspect the container.

Lastly, the applicant claims that when making an equitable
decision under Article 239 of the Community Customs Code it
was necessary to take into account the fact that no financial
loss was incurred by the European Communities and that at no
stage was this threatened, as the alcohol was destined for the
Czech market and was also delivered there.

— annul Commission Decision of 12 December 2003
C(2993)4660/F noting that a remission of import duties
was not justified in a particular case;

Action brought on 1 April 2004 by KM Europa Metal AG,
Tréfimétaux S.A. and Europa Metalli S.p.A. against the
Commission of the European Communities

— order the defendant to pay the costs.

Pleas in law and main arguments:

The applicant is an undertaking engaged in the transport of
goods by rail. The complaint is against the Commission deci-
sion refusing an application by the Federal Republic of
Germany for authority to allow a remission of customs debt in
favour of the applicant. The liability to pay the customs debt
arose because the applicant was alleged to have transported
alcohol declared as paint from the Bremen free zone to the
Hamburg free zone by rail. There was nothing to indicate to
the applicant that the declaration was false. After the goods
reached Hamburg, they were properly transported to their final
destination in the Czech Republic.

The applicant claims inter alia that the decision failed to satisfy
the essential procedural requirement of the right to be heard. It
is true that the applicant was given a formal opportunity to
state its position. However the right to be heard also requires
that the arguments of the parties be considered; in its decision
refusing the application the defendant did not deal with the
arguments submitted. The Commission failed to have regard to
the points made in relation to the different risks incurred by a
rail freight company and a shipping company in a free zone.
The Commission's decision was based on the premise that as a
rail
freight company the applicant would be dealt with in
exactly the same way as a shipping company.

(Case T-127/04)

(2004/C 146/07)

(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 1 April 2004 by KM Europa Metal
AG, Osnabruck (Germany), Tréfimétaux S.A., Courbevoie
Cedex (France), and Europa Metalli S.p.A., Florence (Italy),
represented by M. Siragusa, A. Winckler, G. Cesare Rizza, T.
Graf and M. Piergiovanni, lawyers.

The applicants claim that the Court should:

— substantially reduce the fine imposed on the applicants by
the decision of the Commission of the European Commu-
nities adopted on 16 December 2003 in Case COMP/E-l/
38.240

— order the Commission to pay the Applicants' legal fees and
expenses as well as the costs incurred by the Applicants in
providing a bank guarantee in lieu of payment of KME's
Fine pending judgment

C 146/6

EN

Official Journal of the European Union

29.5.2004

Pleas in law and main arguments:

J.-N. Louis and E. Marchal, lawyers, with an address for service
in Luxembourg.

By the contested decision the Commission found that the appli-
cants, among others, infringed Articles 81 EC and 53(1) EEA
by participating in a complex of agreements and concerted
practices which affected the EEA market for industrial copper
tubes supplied in level wound coils. On these grounds, the
Commission imposed a fine of 18.990.000 Euros on the appli-
cants, jointly and severally.

The applicants do not contest the Decision's findings with
respect to their infringement of the EC and EEA competition
rules, but contend that the Commission committed a number
of factual and legal errors in calculating the amount of the fine.
Firstly, they submit that in establishing the basic amount of the
fine and in its calculation of the duration element, the Commis-
sion violated the principles of proportionality and equal treat-
ment by not taking the statistically insignificant market impact
of the agreements in question and the variations in the cartel's
activities into account.

the gravity of

The applicants further claim that in the context of its assess-
the Commission
ment of
grossly overstated the economic impact of the agreements in
question, by taking the size of the market for the semi-finished
products (copper industrial tubes) into account rather than the
market for conversion services.

the infringement,

The applicants also contend that
the Commission wrongly
failed to take several attenuating circumstances into account,
namely: the limited implementation of the agreements in ques-
tion by the applicants, their immediate and voluntary termina-
tion of the infringement; the structural crisis of the industrial
tube industry; and the applicants' cooperation with the
Commission. They claim that the 30 % fine reduction they
were granted was based on erroneous factual premises, and
was inconsistent with the Commission's practice and the case
law. They further submit
the Commission unlawfully
that
discriminated between them and another company, by applying
certain attenuating circumstance only to the latter and by
according a much more lenient treatment to it without any
objective reason.

Action brought on 8 April 2004 by Giuseppe Caló against
Commission of the European Communities

(Case T-134/04)

(2004/C 146/08)

(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 8 April 2004 by Giuseppe Caló,
residing in Luxembourg, represented by S. Orlandi, A. Coolen,

The applicant claims that the Court of First Instance should:

— annul the Commission decision of 30 March 2004 to fill
the Grade A2 post of Director of the Agriculture, fisheries,
structural funds and environment statistics directorate of
the DG EUROSTAT and that rejecting the applicant's candi-
dature for that post;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, an official of the defendant assigned to EURO-
STAT as Director of the Agriculture, environment, food and
regions statistics directorate, had been reassigned, with his post,
to the duties of Principal Adviser to the Director-General of the
Directorate-General to which he was assigned. The Commission
had also decided to fill his former post.

The applicant has challenged those decisions before the Court
of First Instance in another case (T-118/04 Caló v Commis-
sion).

In the present action, the applicant challenges the decision to
appoint another official to his former post, relying, first, on the
same pleas in law as those invoked in Case T-118/04. He
claims moreover that the candidate appointed does not have
the qualifications required by the vacancy notice in question.
He also contends that that candidate participated in a meeting
of the Commissioners' Chefs de cabinet at which the filling of
the post for which he was himself a candidate was decided. The
applicant, on that basis, alleges infringement of the principles
of transparency, fairness and impartiality and infringement of
the rights of
the applicant alleges a
complete failure to state reasons.

the defence. Finally,

Action brought on 13 April 2004 by K.M. Mayer, Tilly
Forstbetriebe GesmbH, A. Volpini de Maestri and J.
Volpini de Maestri against the Commission of the Euro-
pean Communities

(Case T-137/04)

(2004/C 146/09)

(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 13 April 2004 by K.M. Mayer,
Eisentratten (Austria), Tilly Forstbetriebe GesmbH, Treibach
(Austria), A. Volpini de Maestri, Spittal/Drau (Austria), and J.
Volpini de Maestri, Seeboden (Austria), represented by M.
Schaffgotsch, lawyer.