Case C-403/04 P: Appeal brought on 22 September 2004 by Sumitomo Metal Industries Ltd against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in joined cases T-67/00, T-68/00, T-71/00 and T-78/00 between JFE Engineering Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and the Commission of the European Communities
Date: 2004-11-20
Institutions: Court of Justice
Subjects: EFTA, General Court (EU), action for annulment (EU), fine, indemnification, judicial proceedings, piping, proof, restriction on competition, restrictive trade practice, steel, trade restriction, tube

20.11.2004

EN

Official Journal of the European Union

C 284/9

Pleas and main arguments:

(c) contrary to the principle of equal treatment; and/or

The appeal concerns the order of the Court of First Instance of
27 May 2004 in Case T-358/02 (DPAG and Others v Commis-
sion). By this order, the Court of First Instance dismissed the
action brought on 3 December 2002 by Deutsche Post AG and
DHL Express (Italy) S.r.l. as inadmissible. In the Court's view
the applicants were unable to show that the conditions for
locus standi were fulfilled. Conversely, the applicants assert on
appeal that the Commission's decision is of direct and indivi-
dual concern to them and that they therefore have standing for
the purposes of the fourth paragraph of Article 230 EC. Since
the applicants also possess the necessary legal
the
above mentioned order of the Court of First Instance of 27
May 2004 should, in the applicants' submission, be set aside
and the action brought by Deutsche Post AG and DHL Express
(Italy) on 3 December 2002 be declared admissible.

interest,

(1) OJ C 228 of 11.9.2004.

Reference for a preliminary ruling by the High Court of
Justice (England & Wales), Queen's Bench Division
(Administrative Court), by order of that court dated 24
August 2004, in the case of The Queen on the application
of South Western Fish Producers' Organisation Ltd and
others against Secretary of State for Environment, Food
and Rural Affairs

(Case C-388/04)

(2004/C 284/18)

the High Court of

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
Justice
(England & Wales), Queen's Bench Division (Administrative
Court), dated 24 August 2004, which was received at the Court
Registry on 10 September 2004 for a preliminary ruling in the
case of The Queen on the application of South Western Fish
Producers' Organisation Ltd and others and Secretary of State
for Environment, Food and Rural Affairs on the following ques-
tions:

Are Article 12 and paragraph 6 of Annex V of Council Regu-
lation (EC) 2287/2003 (1),
insofar as they apply to vessels
carrying gear in the class referred to in paragraph 4(b) of that
Annex, unlawful in their application to ‘chain mat’ beam traw-
lers operating in the Eastern Channel because they are:

(a) contrary to Articles 33 and 34 EC;

(b) disproportionate;

(d) contrary to the Claimant's right to earn a living free from

unnecessary constraint?

(1) Regulation of 19 December 2003 fixing for 2004 the fishing oppor-
tunities and associated conditions for certain fish stocks and groups
of fish stocks, applicable in Community waters and, for Community
vessels, in waters where catch limitations are required (OJ L 344,
31.12.2003, p. 1).

Appeal brought on 22 September 2004 by Sumitomo
Metal Industries Ltd against the judgment delivered on 8
July 2004 by the Second Chamber of the Court of First
Instance of the European Communities in joined cases T-
67/00, T-68/00, T-71/00 and T-78/00 between JFE Engi-
neering Corp., Nippon Steel Corp., JFE Steel Corp. and
Sumimoto Metal Industries Ltd and the Commission of
the European Communities

(Case C-403/04 P)

(2004/C 284/19)

An appeal against the judgment delivered on 8 July 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in joined cases T-67/00, T-68/00, T-71/00
and T-78/00 between JFE Engineering Corp., Nippon Steel
Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and
the Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
22 September 2004 by Sumitomo Metal Industries Ltd, estab-
lished in Osaka, Japan, represented by C. Vajda QC and G.
Sproul, Solicitor.

The Appellant claims that the Court should:

(i) allow the Appeal, in whole or in part, against the judgment
in joined cases T-67/00, T-68/00, T-71/00 and T-78/00
and set aside, in whole or in part, the said judgment;

(ii) annul, in whole or in part, Articles 1 and 3 to 6 of the

Decision in so far as they are addressed to SMI;

(iii) order, if appropriate, the Commission to pay compensa-
tion to SMI for the breach of Article 6(1) of the ECHR a
sum of not less than EUR 1,012,332, being the aggregate
of EUR 217,183 (the extra cost of the bank guarante), EUR
620,249 (the extra cost of the default interest), and EUR
175,000; and

(iv) order the Commission to pay SMI's costs, both before the

Court and the Court of First Instance.

C 284/10

EN

Official Journal of the European Union

20.11.2004

Pleas in law and main arguments:

Japan, represented by J.-F. Bellis and K. Van Hove,

Tokyo,
lawyers, with an address for service in Luxembourg.

The Appellant submits that the judgment of the Court of First
Instance should be set aside on the following grounds:

The Appellant claims that the Court should:

(a) the Court of First Instance erred in law by applying the
wrong standard of proof in a case where the Appellant has
demonstrated that the Commission's allegation is incompa-
tible with the Appellant's commercial interest and therefore
irrational;

(b) the Court of First Instance erred in law by applying the
wrong standard of proof in a case where the documentary
evidence is ambiguous and the Appellant has offered a
plausible alternative explanation of the conduct at issue;

(c) the Court of First Instance erred in law by applying the
wrong legal standard of proof as to the level of corrobora-
tion required in support of contested statements which the
Commission uses as principal evidence but which are
implausible, highly ambiguous and contradicted by other
evidence;

(d) the Court of First Instance erred in law by giving contradic-
tory and inadequate reasons in concluding that the state-
ment of Mr Becher (an employee of Mannesmann) of 21
April 1997 could corroborate the statements of Mr
Verluca, Head of Vallourec Oil & Gas, regarding the alleged
infringement in respect of project line pipe.

Appeal brought on 22 September 2004 by Nippon Steel
Corp. against the judgment delivered on 8 July 2004 by
the Second Chamber of the Court of First Instance of the
European Communities in joined cases T-67/00, T-68/00,
T-71/00 and T-78/00 between JFE Engineering Corp.,
Nippon Steel Corp., JFE Steel Corp. and Sumimoto Metal
the European
Industries Ltd and the Commission of

Communities

(Case C-405/04 P)

(2004/C 284/20)

An appeal against the judgment delivered on 8 July 2004 by
the Second Chamber of the Court of First Instance of the Euro-
pean Communities in joined cases T-67/00, T-68/00, T-71/00
and T-78/00 between JFE Engineering Corp., Nippon Steel
Corp., JFE Steel Corp. and Sumimoto Metal Industries Ltd and
the Commission of the European Communities, was brought
before the Court of Justice of the European Communities on
22 September 2004 by Nippon Steel Corp., established in

— set aside the judgment of the Court of First Instance of the
European Communities of 8 July 2004 in joined cases T-
67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering
Corp., Nippon Steel Corp., JFE Steel Corp. and Sumimoto
Metal Industries Ltd v Commission in so far as it concerns
Nippon Steel Corporation;

— annul

the decision of

the European Commission of 8
December 1999 relating to a proceeding under Article 81
the EC Treaty (Case IV/E-1/35.860-B Seamless steel
of
tubes) in so far as it concerns Nippon Steel Corporation; or

— in the alternative, if the Appellant is successful in its appeal
only in so far as it concerns project line pipe, reduce the
fine imposed on Nippon Steel Corporation by two-thirds;
and

— order the Commission to bear all the costs before the Court

of First Instance and the Court of Justice.

Pleas in law and main arguments:

The Appellant submits that the judgment of the Court of First
Instance should be set aside on the following grounds:

(a) the Court of First Instance erred in law by applying the
wrong standard of proof in a case where the Appellant has
demonstrated that the Commission's allegation is incompa-
tible with the Appellant's commercial interest and therefore
irrational;

(b) the Court of First Instance erred in law by applying the
wrong standard of proof in a case where the documentary
evidence is ambiguous and the Appellant has offered a
plausible alternative explanation of the conduct at issue;

(c) the Court of First Instance erred in law by applying the
wrong legal standard of proof as to the level of corrobora-
tion required in support of contested statements which the
Commission uses as principal evidence but which are
implausible, highly ambiguous and contradicted by other
evidence;

(d) the Court of First Instance erred in law by giving contradic-
tory and inadequate reasons in concluding that the state-
ment of Mr Becher (an employee of Mannesmann) of 21
April 1997 could corroborate the statements of Mr
Verluca, Head of Vallourec Oil & Gas, regarding the alleged
infringement in respect of project line pipe.