Case C-167/04 P: Appeal brought on 5 April 2004 by JCB Service against the judgment delivered on 13 January 2004 by the First Chamber of the Court of First Instance of the European Communities in case T-67/01 between JCB Service and the Commission of the European Communities.
Date: 2004-06-12
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), appeal, exclusive distribution agreement, infringement of EU law, judgment of the Court (EU), mechanical engineering, restriction on competition

12.6.2004

EN

Official Journal of the European Union

C 156/3

Reference for a preliminary ruling by the Commission
litiges voyages by order of that court of 4 December 2003
in the case of Guy Denuit and Betty Cordenier against
Transorient – Mosaïque Voyages and Culture SA

interpreted as requiring the travel organiser and/or retailer
revise the price downwards if the consumer has not asked it
to do so?

(Case C-125/04)

(2004/C 156/05)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Commission litiges voyages
(Belgium), of 4 December 2003, received at the Court Registry
on 8 March 2004, for a preliminary ruling in the case of Guy
Denuit and Betty Cordenier against Transorient – Mosaïque
Voyages and Culture SA on the following question:

1. Where a clause in a contract between a consumer and a
[travel] organiser and/or retailer provides only for the possi-
bility of an upward price revision and states precisely how
the calculations is to be made, solely in order to take
account of variations set down in an exhaustive list by
Article 4(4) of Directive 90/314/EEC, must that article be
interpreted as implicitly requiring downward price revision
according to the same method of calculation?

2. Where a clause in a contract between a consumer and an
organiser and/or retailer provides for the possibility of both
upward and downward price revision without
stating
precisely how the calculation is to be made, and solely in
order to take account of variations set down in an exhaus-
tive list by Article 4(4)(a) of Directive 90/314/EEC, must
that article be interpreted as invalidating the entire clause or
as limiting that invalidity to upward price revision?

3. Where a clause in a contract between a consumer and an
organiser and/or retailer gives only the organiser and/or
retailer the possibility of revising prices upwards or down-
wards states precisely how the calculation is to be made,
solely to take account of variations set down in an exhaus-
tive list down by Article 4(4)(a) of Directive 90/314/EEC,
must
that article be interpreted as rendering the whole
clause void, or is its invalidity limited to upward price revi-
sion?

Action brought on 2 April 2004 by the Commission of the
European Communities against the Hellenic Republic

(Case C-166/04)

(2004/C 156/06)

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 2 April 2004
by the Commission of the European Communities, represented
by Maria Patakia and Michel Van Beek, Legal Advisers in its
Legal Service.

The Commission claims that the Court should:

— declare that, by failing to take all the measures necessary
for laying down and implementing a cohesive, specific and
integrated legal
regime capable of ensuring sustainable
management and effective protection of Special Protection
Area GR2310001 ‘Acheloos Delta, Messolonghi/Aitolikon
Lagoon and the estuary of the River Evinos and Echinades
Islands’, in the light of the conservation objectives of Direc-
tive 79/409/EEC on the conservation of wild birds, (1) the
Hellenic Republic has failed to fulfil its obligations under
Article 4(1) and (2) of that directive;

— order the Hellenic Republic to pay the costs.

In accordance with settled case-law of the Court of Justice of
the European Communities, a Member State cannot plead
internal circumstances or difficulties to justify its failure to
comply with obligations and time-limits flowing from Com-
munity law.

(1) OJ L 103, 25.4.1979, p. 1.

Appeal brought on 5 April 2004 by JCB Service against
the judgment delivered on 13 January 2004 by the First
Chamber of the Court of First Instance of the European
Communities in case T-67/01 between JCB Service and the
Commission of the European Communities.

(Case C-167/04 P)

(2004/C 156/07)

4. Where a clause in the contract between a consumer and an
organiser and/or retailer gives, both the travel organiser
and/or retailer and the consumer the possibility of bene-
fiting from upward and downward price revision, and states
precisely how the calculation is to be made, solely to take
account of the variations set down in an exhaustive list by
Article 4(4)(a) of Directive 90/314/EEC, must that article be

An appeal against the judgment delivered on 13 January 2004
by the First Chamber of the Court of First Instance of the Euro-
pean Communities in case T-67/01 (1) between JCB Service and
the Commission of the European Communities, was brought
before the Court of Justice of the European Communities on 5
April 2004 by JCB Service, established in Rocester, Stafford-
shire (United Kingdom), represented by E. Morgon de Rivery,
lawyer.

C 156/4

EN

Official Journal of the European Union

12.6.2004

The Appellant claims that the Court should:

Se c ond ple a i n la w

1. annul

in its entirety the judgment of the Court of First
Instance dated 13 January 2004 in case T-67/01,
JCB
Service against Commission of the European Communities
in so far as it infringes EU law by violating the Appellant's
rights of defence; or

the European Communities,

2. annul the judgment of the Court of First Instance dated 13
January 2004 in case T-67/01, JCB Service against Commis-
sion of
it
condemns an alleged general restriction on passive sales by
authorised distributors in the United Kingdom,
Ireland,
France and Italy, and an alleged restriction on the sources of
supply of distributors located in France and Italy, which
prevented cross-supplies between distributors, and in so far
as (ii) it imposes a fine on JCB Service for these alleged
infringements; and

in so far as (i)

3.

judgment on case T-67/01 pursuant

itself give final
to
Article 61 of the Statute (EC) of the Court and accordingly
annul, wholly or in part, the decision of the Commission
dated 21 December 2000 in case COMP.F.1/35.918 (2) and,
using its full jurisdiction, annul or reduce the fine of EUR
30 million imposed on JCB Service by the judgment of the
Court of First Instance dated 13 January 2004 in case T-67/
01,
the European
Communities; and

JCB Service against Commission of

The Appeallant contends that the CFI infringed Article 81 EC
by condemning the Appellant (i) for imposing a general prohi-
bition on passive sales on its distributors in the United
Kingdom, Ireland, France and Italy, and (ii) for restricting the
sources of supply of its distributors in France and Italy, on the
basis of an erroneous legal characterisation of the facts, distor-
tion of evidence and erroneous application of applicable EC
competition rules. This in turn engendered an application of
the prohibition laid down in Article 81 EC that is clearly incon-
sistent with the letter and the purpose of said provision.

T h i r d p l e a i n la w

This concerns the computation of the fine. Here, the Appellant
contends that the CFI infringed Article 15 of Regulation No 17
by violating major fundamental principles applicable to the
ordering of the fine, i.e., the principle of sound administration,
the legitimate expectations of private parties and the principle
of equal punishment, as well as by incorrectly assessing the
gravity and the duration of the alleged infringements and both
the attenuating and aggravating circumstances.

(1) OJ C 186, 30.06.2001, p. 9.

4.

in accordance with Article 69 of the
in all cases, order,
Court's Rules of Procedure,
the Commission to pay the
Appellant's costs incurred both before the Court of First
Instance and before this Court;

5. alternatively to 3., in the event that the Court does not itself
decide on the case, reserve the costs and remand the case to
the Court of First Instance for reconsideration in accordance
with the Court's judgment.

Pleas in law and main arguments:

F i r s t p le a i n la w

Reference for
a preliminary ruling by the Högsta
Domstolen (Sweden) by order of that court of 30 March
2004 in case of Klas Rosengren, Bengt Morelli, Hans
Särman, Mats Åkerström, Åke Kempe, Anders Kempe,
Jon
Mats Kempe, Björn Rosengren, Martin Lindberg,

Pieree and Tony Staf against Riksåklagaren

(Case C-170/04)

(2004/C 156/08)

The Appellant submits that the Court of First Instance (‘CFI’)
infringed Community law by refusing to address the claim that
the Appellant's rights of defence had been abused. First, the
Appellant contends that its rights of defence were breached due
to the excessive duration of the procedure before the Commis-
sion, which lasted for 27 years (from the date of the notifica-
tion to the date of the Commission Decision), preventing it
from exercising its rights as a notifying party. The CFI erred in
law by ignoring the consequences of such violation on the
Appellant's ability to effectively defend itself. Second,
the
Appellant contends that its right to a presumption of innocence
was also violated due to the CFI's failure to take into considera-
to apply the
tion certain exculpatory pieces of evidence,
method of faisceau d'indices (bundle of indicators) in order to
assess the relevant pieces of evidence, and to provide adequate
and impartial reasoning.

(2) OJ L 69, 12.03.2002, p. 1.

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Högsta Domstolen (Court of
Appeal for Western Sweden) of 30 March 2004 received at the
Court Registry on 6 April 2004, for a preliminary ruling in the
case of Klas Rosengren, Bengt Morelli, Hans Särman, Mats
Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn
Rosengren, Martin Lindberg, Jon Pieree and Tony Staf against
Riksåklagaren the following questions concerning the interpre-
tation of Articles 28, 30 and 31 of the EC Treaty:

1. Can it be held that the above mentioned ban on imports
constitutes part of the retail monopoly's manner of opera-
tion and that on that basis it is not precluded by Article 28
and is to be examined only in the light of Article 31?

2. If the answer to Question 1 is yes, is the ban on imports in
such a case compatible with the conditions laid down for
State monopolies in Article 31?