Case T-270/04: Action brought on 1 July 2004 by Bic Deutschland GmbH & Co OHG against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), central bank, exclusive distribution agreement, fine, guarantee, limitation of legal proceedings, office supplies

C 262/30

EN

Official Journal of the European Union

23.10.2004

Action brought on 30 June 2004 by World Wide Fund for
Nature European Policy Programme against the Council of
the European Union

Action brought on 1 July 2004 by Bic Deutschland GmbH
& Co OHG against the Commission of the European
Communities

(Case T-264/04)

(2004/C 262/58)

(Language of the case: English)

(Case T-270/04)

(2004/C 262/59)

(Language of the case: French)

An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 30 June 2004 by World Wide Fund for
Nature European Policy Programme, Brussels, Belguim, repre-
sented by Ms R. Haynes, Barrister.

The applicant claims that the Court should:

— Annul the contested decision of the Council, of 30 April
2004, maintaining the Council's refusal
to disclose the
document it had identified as relevant to the applicant's
request.

Pleas in law and main arguments:

By a letter dated 23 February 2004 the applicant applied to the
in accordance with Article 6 of Regulation
Council
1049/2001 (1), Official
Journal L 145, 31.5.2001, p. 43-48,
and sought information with respect to an item entitled ‘WTO-
Sustainability and Trade after Cancun’ on the agenda of the
its Deputy
‘Article 133 EC’ Committee for a meeting of
Members on 19 December 2003. By letter of 17 March 2004
the Council indicated that, in relation to the applicant's applica-
tion,
it had identified a note of the Commission covering a
wide range of issues concerning the follow-up to the Cancun
conference which, however, it declined to disclose on the basis
that disclosure would undermine
the European Union's
commercial
interests and would be prejudicial to economic
relationships with third countries. It further informed the appli-
cant that no minutes of meetings of the Deputy Members of
the Committee were drawn up.

The applicant made a confirmatory application in accordance
with Article 7 paragraph 2 of Regulation 1049/2001 on 5
April 2004. By the contested decision the Council maintained
its refusal on the grounds it had already indicated.

In support of its application to annul the contested decision the
applicant contends that the Council has erred in its assessment
of the sensitivity of the relevant information, has failed to
provide adequate reasons for its refusal and has failed to apply
properly the principle of proportionality in assessing the possi-
bility of partial disclosure.

(1) Regulation (EC) No 1049/2001 of the European Parliament and of
the Council of 30 May 2001 regarding public access to European
Parliament, Council and Commission documents.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 1 July 2004 by Bic Deutschland
GmbH & Co OHG, established in Eschborn (Germany), repre-
sented by Dominique Voillemot, lawyer.

The applicant claims that the Court should:

from it of the fine which it

— annul the Commission Decision of 3 May 2004 seeking
payment
imposed on the
company Tipp-Ex by its decision of 10 July 1987 with
interest calculated once and for all to 28 May 2004 and
deciding to put into effect the bank guarantee provided by
Deutsche Bank AG Frankfurt am Main;

— order the defendant to pay all the costs.

Pleas in law and main arguments:

The applicant company is the successor in title to Tipp-Ex
following the repurchase on 1 January 1997 and the subse-
quent internal restructuring of the BIC group. Tipp-Ex was the
addressee of Decision No 87/406/EEC of 10 July 1987, by
which the Commission imposed upon it a fine of ECU
400 000 for breach of Community competition rules.

that decision and
Tipp-Ex had brought an action against
provided the Commission with a bank guarantee payable on
first demand to guarantee payment of the fine plus interest at
8 %. In accordance with usual practice in that regard, that guar-
antee was to be honoured only upon a written demand from
the Commission, with a certified copy of the Court's judgment.
On 8 February 1990, (1) the Court dismissed Tipp-Ex's action
and upheld the decision of 10 July 1987.

payment

It was only by letter of 12 February 2004 that the Commission
of
requested
fine of
EUR 923 747.94,
EUR 400 000 and
interest
(EUR 523 747.94).

the
including the amount of
amount
additional

amount
the
of

from BIC

the

of

Following an exchange of correspondence between the appli-
cant and the Commission, the Commission, by the contested
decision, rejected BIC's arguments, based in particular on the
rule of limitation set out in Article 4(1) of Regulation No
2988/74 (2) and demanded payment of the definitive amount
of the fine (EUR 931 726.02).

23.10.2004

EN

Official Journal of the European Union

C 262/31

In support of its claims, the applicant submits that:

— there was a breach of Article 4(1) of the abovementioned
Regulation No 2988/74 which does not permit execution
of a decision imposing a fine after a period of five years has
elapsed.
the limitation
in that regard,
period in question was neither interrupted nor suspended;

It considers,

that

it

to pay to the applicant

— declare that the defendant is at fault and contractually liable
sum of
and order
EUR 27 330 577.77,
its loss,
together with interest at the legal rate applicable in Belgium
(currently 7 %) from the date of the application to the date
of actual payment, the amount being subject to adjustment
during the proceedings;

the
the estimated amount of

— there was a manifest error of assessment regarding the func-
tioning of the bank guarantee payable on first demand. The
applicant contends, in that regard, on one hand, that the
provision of such a guarantee does not constitute payment
of the fine and that the mere holding of it does not, of
itself, entail an obligation to make payment and, in addi-
tion, that the putting into effect of the bank guarantee
requires an enforcement measure in accordance with Regu-
lation No 2988/74. In accordance with the wording of the
guarantee in question, that enforcement measure should
consist of an express demand made by the Commission to
Deutsche Bank, together with a certified copy of the judg-
ment of the Court of Justice, sent by recorded delivery
letter.

Furthermore, the applicant submits that there was a breach of
the principle of protection of legitimate expectations and, in
the alternative, a breach of the general principle that measures
should be taken within a reasonable time.

— declare, alternatively, that the Community, represented by
the Commission, is liable and order the Commission to pay
the sum of EUR 20 589 332.22 as compensation for the
loss suffered together with default interest on that sum
from the date of judgment until the date of actual payment,
at the rate of 6 %, the amount being subject to adjustment
during the proceedings;

— order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant affirms that it concluded a contract for a lease
with the Commission of a building in Brussels comprising
16 954 m2. The Commission even agreed that
the lessor
should place an order for the interior fitting-out required to be
done.

(1) Case C-279/98 Tipp-Ex v Commission [1990] ECR I-261.
(2) Regulation (EEC) No 2988/74 of the Council of 26 November 1974
concerning limitation periods in proceedings and the enforcement
of sanctions under the rules of the European Economic Community
relating to transport and competition (OJ L 319, 29.11.1974, p. 1).

the Commission informed the

lessor before
However,
1 November 2003, the date on which the lease became effec-
tive, that it intended neither to take the property on lease nor
to indemnify the applicant for the work already arranged.

In support of its claims, the applicant submits that:

— Although the lease contract had not been formally signed
by the Commission, it bound the parties, since the contract
is concluded under Belgian law by simple consent of the
parties without formalities;

Action brought on 5 July 2004 by Citymo S.A. against the
Commission of the European Communities

— The Commission is liable by reason of its repudiation of the

contract.

(Case T-271/04)

(2004/C 262/60)

(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 5 July 2004 by Citymo S.A, estab-
lished in Brussels, represented by Pierre Van Ommeslaghe and
Isabelle Heenen, lawyers.

The applicant claims that the Court should:

The applicant seeks the setting aside of the contract due to the
Commission's fault pursuant to Article 1.184 of the Belgian
Civil Code and an order that it compensate the applicant for
the loss it suffers as a result thereof.

issue was concluded,

the applicant considers that

In the alternative, should the Court not accept that the contract
at
the
Commission committed an act of non-contractual negligence
by breaking off the negotiations. It claims in that regard that
the defendant acted in bad faith by disappointing Citymo's
legitimate expectations acquired during the contract negotia-
tions and by leading it to believe that the contract would be
concluded, but then withdrawing from it and failing to act in
good faith by informing the applicant of its changed intentions.