Case C-407/04 P: Appeal brought on 24 September 2004 (fax of 16 September 2004) by Dalmine SpA against the judgment delivered on 8 July 2004 by the Second Chamber of the Court of First Instance of the European Communities in Case T-50/00 between Dalmine SpA and the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), competition, infringement of EU law, interpretation of the law, restrictive trade practice, steel, tube

4.12.2004

EN

Official Journal of the European Union

C 300/25

1. Declares that, by failing to adopt

of

the laws,

development

regulations and
administrative provisions necessary to comply with Directive
2001/12/EC of the European Parliament and of the Council of
26 February 2001 amending Council Directive 91/440/EEC on
the
railways, Directive
the Community's
2001/13/EC of the European Parliament and of the Council of
26 February 2001 amending Council Directive 95/18/EC on the
licensing of railway undertakings, and Directive 2001/14/EC of
the European Parliament and of the Council of 26 February 2001
on the allocation of railway infrastructure capacity and the levying
of charges for the use of railway infrastructure and safety certifica-
tion, the Hellenic Republic has failed to fulfil its obligations under
those directives.

2. Orders the Hellenic Republic is ordered to pay the costs.

(1) OJ C 59 of 3.2.2004.

Appeal brought on 24 September 2004 (fax of 16
September 2004) by Dalmine SpA against the judgment
delivered on 8 July 2004 by the Second Chamber of the
Court of First Instance of the European Communities in
Case T-50/00 between Dalmine SpA and the Commission
of the European Communities

(Case C-407/04 P)

(2004/C 300/51)

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 Case T-50/00 Dalmine SpA v Commis-
sion of the European Communities was brought before the
Court of
the European Communities on 24
September 2004 by Dalmine SpA, represented by A. Sinagra,
M. Siragusa and F.M. Moretti, lawyers.

Justice of

The appellant claims that the Court should:

— annul the contested judgment of the Court of First Instance

together with the decision originally contested; or

— annul the contested judgment and, consequently, the parts
of the Commission decision covered by such pleas put
forward in the present notice of appeal as the Court may
find to be acceptable and well founded;

committed by the Court of First Instance in assessing the
appropriateness of the penalty, or as a consequence of the
annulment, in whole or in part, of the judgment, with par-
ticular (but not exclusive) regard to the findings of the
Court of First
Instance in relation to the infringements
found in Articles 1 and 2 of the decision;

— assess whether,

for various reasons and pursuant to its
autonomous jurisdiction,
it should refer the case back to
the Court of First Instance for reconsideration and a new
judgment which should take account of the Court of Justi-
ce's interpretation of the legislation and of the principles of
law in the present case;

— lastly, in any event, set aside the order as to costs in the
judgment of
Instance and order the
Commission to pay Dalmine's costs at first instance and
those of the appeal.

the Court of First

Pleas in law and main arguments:

The appellant submits that the judgment of the Court of First
Instance is flawed for:

— infringement and misapplication of Community law, and
infringement of the rights of the defence, in finding that the
questions which the Commission put to the applicant, in
particular by the decision requesting information under
Article 11(5) of Regulation No 17/62 (1), were lawful;

— infringement and misapplication of Community law and
infringement of the rights of the defence in finding that the
‘Sharing Key’ document was admissible and of evidential
value;

— infringement and misapplication of Community law and
infringement of the rights of the defence in finding that the
the interview with the former director of
minutes of
Dalmine were admissible and of evidential value;

— infringement of Article 81 EC as regards the legitimacy of
the inclusion in the decision of extraneous grounds in the
complaints made against the undertakings;

— infringement of Article 81 EC, misapplication of the law,
distortion of the evidence and breach of the duty to state
reasons in respect of the determination of the object of the
alleged infringement under Article 1 of the decision, the
assessment of its implementation, the determination of its
effects and the fact of treating a potential, unimplemented
infringement, or one without any appreciable effect on
competition, in the same way as fully implemented infrin-
gements which have an unlawful object and effect;

— in the alternative, annul Article 4 of

the decision and
substantially reduce the fine imposed, taking account of the
grounds and facts put forward in the present notice of
law
appeal, whether as a consequence of the errors of

— infringement of Article 81 EC, misapplication of the law,
distortion of the evidence and breach of the duty to state
reasons in respect of the alleged effect on trade between
Member States;

C 300/26

EN

Official Journal of the European Union

4.12.2004

— action taken ultra vires,

infringement of Community law
and distortion of the facts and of the evidence as regards
the Court of First Instance's reconstruction of the infringe-
ment found by the Commission in Article 2 of the decision;

— action taken ultra vires,

infringement of Community law
and distortion of the facts and of the evidence as regards
the finding of the unlawfulness of the objects and/or the
effects of the supply contract between Dalmine and British
Steel, in so far as it restricted competition on the market
for plain end and threaded pipes;

— infringement of Community law and distortion of the facts
and of the evidence in so far as the terms of the supply
contract between Dalmine and British Steel were found to
be unlawful;

— in the alternative, infringement of Article 81 EC and breach
of
the
the duty to state reasons in the assessment of
Commission's compliance with Article 15 of Regulation No
17/62 and of the Guidelines on the method of setting fines,
as regards the gravity of
the infringement said to be
committed by Dalmine;

— and, lastly, again in the alternative, infringement of Article
81 EC and breach of the duty to state reasons in the assess-
ment of the Commission's compliance with Article 15 of
Regulation No 17/62 and with the Guidelines on the
method of setting fines, as regards the assessment of the
alleged to have been
duration of
infringement
the
committed by Dalmine and of
the attenuating circum-
stances.

(1) OJ, English Special Edition, Series I, Chapter 1959-1962, p. 87.

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 2
August 2004, in the case of The Queen on the application
of 1) Teleos plc 2) Unique Distribution Ltd 3) Synectiv Ltd
4) New Communications Ltd 5) Quest Trading Company
Ltd 6) Phones Interntional Ltd 7) AGM Associates Ltd 8)
DVD Components Ltd 9) Fonecomp Ltd 10) Bulk GSM 11)
Libratech Ltd 12) Rapid Marketing Services Ltd 13) Earth-
shine Ltd 14) Stardex (UK) Ltd against Commissioners of
Customs and Excise

(Case C-409/04)

(2004/C 300/52)

Reference has been made to the Court of Justice of the Euro-
Justice
pean Communities by order of

the High Court of

(England & Wales), Queen's Bench Division (Administrative
Court), dated 2 August 2004, which was received at the Court
Registry on 24 September 2004, for a preliminary ruling in the
case of The Queen on the application of 1) Teleos plc 2)
Unique Distribution Ltd 3) Synectiv Ltd 4) New Communica-
tions Ltd 5) Quest Trading Company Ltd6) Phones Interntional
Ltd 7) AGM Associates Ltd 8) DVD Components Ltd 9) Fone-
comp Ltd 10) Bulk GSM 11) Libratech Ltd 12) Rapid Marketing
Services Ltd 13) Earthshine Ltd 14) Stardex (UK) Ltd and
Commissioners of Customs and Excise on the following ques-
tions:

1. In the relevant circumstances,

in
Article 28a(3) (1) (intra-Community acquisition of goods) to
be understood as meaning that intra-Community acquisition
takes place when:

is the term ‘despatched’

a. the right to dispose of the goods as owner passes to the
purchaser and the goods are supplied by the supplier by
placing them at the disposal of the purchaser (who is
registered for VAT in another Member State), on an ex
works contract of sale whereby the purchaser assumes
responsibility for removing the goods to a different
Member State from that of supply, at a secure warehouse
located in the supplier's Member State, and where the
contractual
documentary
evidence state that the intention is that the goods should
then be transported onwards towards a destination in
another Member State, but the goods have not yet physi-
cally left the territory of the Member State of Supply; or

documents

and/or

other

b. the right to dispose of the goods as owner passes to the
purchaser and the goods commence, but do not necessa-
rily complete, their journey towards a different Member
State (in particular, if the goods have not yet physically
left the territory of the Member State of supply); or

c. the right to dispose of the goods as owner has passed to
the purchaser and the goods have physically left the terri-
tory of the Member State of supply on their journey
towards a different Member State?

2. Is Article 28cA(a) to be interpreted as meaning that supplies

of goods are exempt from VAT where:

— the goods are supplied to a purchaser who is registered

for VAT in another Member State; and

— the purchaser contracts to purchase the goods on the
basis that, after he has acquired the right to dispose of
the goods as owner in the supplier's Member State, he
will be responsible for transporting the goods from the
supplier's Member State to a second Member State; and: