Case T-41/05: Action brought on 28 January 2005 by Dimon Incorporated against the Commission of the European Communities
Date: 2005-01-28
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), fine, price agreement, purchase price, restrictive trade practice, sanction (EU), selling price, tobacco, tobacco industry

16.4.2005

EN

Official Journal of the European Union

C 93/33

Action brought on 28 January 2005 by Ritec International
Limited against the Commission of the European Commu-
nities

(Case T-40/05)

(2005/C 93/63)

(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 28 January 2005 by Ritec Interna-
tional Limited, established in Enfield (United Kingdom), repre-
sented by P.H.L.M. Kuypers and M.J. Osse,
lawyers with an
address for service in Luxembourg.

The applicant claims that the Court should:

— declare that the applicant does not require to obtain an
exemption under Article 5(7) Regulation 2037/2000/EC for
its particular use of HCFC-141b in the product ‘ClearShield’;

— in the alternative, order the Commission to take as soon as
possible a new decision in accordance with the ruling of
the Court, should the Court declare that the applicant is
required to obtain an exemption under Article 5(7) Regu-
lation 2037/2000 for its particular use of HCFC-141b in
the product ‘ClearShield’;

— declare that the applicant has sufficiently demonstrated that
for its particular use of HCFC-141b in the product ‘Clear-
Shield’ no technically and economically feasible alternative
substance or technology is available nor can be used in the
sense of Article 5(7) Regulation 2037/2000;

— order the Commission to pay all the costs in these proceed-

ings.

Pleas in law and main arguments

allows

Article 5(7) of Regulation 2037/2000/EC (1)
the
Commission, following a request by a competent authority of a
Member State, to authorise a time-limited exemption allowing
the use and placing on the market of hydrochlorofluorocar-
bons, in cases where it is demonstrated that, for a particular
use, technically and economically feasible alternative substances
or technologies are not available or cannot be used. The
competent authority of
the United Kingdom filed such a
request to obtain, for the applicant, an exemption for its par-
ticular use of HCFC-141b in its product ‘ClearShield’, a glass
protection product. On 23 November 2004 the Commission
rejected this application.

was planning to release the flammable ‘ClearShield’ or a spray
booth in 2005, that flammable glass protection products can
be rendered safe for
the applicator when the flammable
product is applied in a spray booth, and that it has had suffi-
cient time to replace the use of HCFC-141b with alternatives. It
further contends that the contested decision fails to take into
account that the applicant has found an alternative to the use
of HCFC-141b. At the same time the applicant challenges the
Commission's finding that several non-HCFC alternatives are
available but not yet implemented due to flammability concerns
or that
they are used by other companies within the EU
market. The applicant submits that it has found only one alter-
native which is not commercially available.

The applicant further challenges the Commission's findings that
use of HCFC-141b had already been banned under Regulation
3093/1994 (2) and that an exemption under Article 5 (7) of
Regulation 2037/2000 was necessary for
the applicant's
continued use of that substance. According to the applicant its
particular use of HCFC-141b is not covered by regulation
2037/2000 or, at the very least, will be prohibited only after
2015.

Finally, the applicant alleges that the Commission's decision
infringes Article 253 EC by failing to state the reasons on
which it is based.

(1) Regulation (EC) No 2037/2000 of the European Parliament and of
the Council of 29 June 2000 on substances that deplete the ozone
layer, OJ L 244 p. 1.

(2) Council Regulation (EC) No 3093/94 of 15 December 1994 on

substances that deplete the ozone layer, OJ L 333 p. 1.

Action brought on 28 January 2005 by Dimon Incorpo-
rated against the Commission of the European Commu-
nities

(Case T-41/05)

(2005/C 93/64)

(Language of the case: English)

The applicant considers that the Commission misunderstood
the way in which the applicant uses HCFC-141b and further
contests the Commission's assertions that products similar to
non-flammable ‘ClearShield’ are marketed, that the applicant

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 January 2005 by Dimon Incor-
porated, established in Danville, Virginia (USA), represented by
L.Bergkamp, H. Cogels and J. Dhont, lawyers.

C 93/34

EN

Official Journal of the European Union

16.4.2005

The applicant claims that the Court should:

1998 (2), following the early termination of the infringement as
soon as the Commission began the investigation.

— declare Articles 1, 3 and 5 of the contested decision null

and void to the extent that they refer to Dimon Inc.;

— in second order, reduce the amount of the fine imposed on
Agroexpansion S.A. and on a joint and severally basis to
Dimon Inc.;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant contests the decision of the Commission of 20
October 2004 relating to a proceeding under Article 81(1) EC
(Case COMP/C.38.238/B.2 - Raw tobacco Spain). The applicant
claims that it is not the correct addressee of the decision.

In support of its application, the applicant invokes an infringe-
ment of Article 81(1) EC, Article 23(2) of Regulation No
1/2003 (1) and of the principle of proportionality. According to
the applicant, the Commission made a manifest error in finding
that the applicant exercised a decisive influence over Agroex-
pansion during the infringement period and has therefore
incorrectly addressed the decision to the applicant and has
exceeded the maximum limit for the amount of the fine that
can be imposed on Agroexpansion, since the Commission has
taken into consideration the Dimon's group turnover for calcu-
lating the maximum ceiling of the fine.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the ruleson competition laid down in Articles 81
and 82 of the Treaty (OJ 2003 L 1, p. 1)

(2) Guidelines on the method of setting fines imposed pursuant to
Article 15 (2) of Regulation No 17 and Article 65(5) of the ECSC
Treaty (OJ C 9, p. 3)

Action brought on 31 January 2005 by Rhiannon Williams
against the Commission of the European Communities

(Case T-42/05)

(2005/C 93/65)

(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 31 January 2005 by Rhiannon
Williams, residing in Brussels (Belgium), represented by S.
Crosby and C. Bryant Solicitors.

The applicant claims that the Court should:

— annul the decision of the Commission of 19 November
2004 to refuse to give access to the documents which,
although not identified in the contested decision, must be
presumed to exist;

The applicant furthermore submits a violation of the principle
of proportionality and liability to the extent that the applicant
has been held liable for a single and complex long term cartel
agreement carried out by Agroexpansion of which the appli-
cant was not informed.

— annul the decision of the Commission of 19 November
2004 to refuse to give access to all or any of documents 9,
16, 17, 27, 29, 32, 33, 34 and 46, as identified in the
contested decision;

The applicant also submits a violation of
the principle of
proportionality and liability and of Article 23(2) of Regulation
No 1/2003. According to the applicant,
it should not have
been held liable for the infringements that occurred before
Agroexpansion became part of the Dimon group.

Finally, the applicant submits a violation of the principle of
legitimate expectations in the application of a mitigating factor,
the Commission's Guidelines of
pursuant

to Section 3 of

— order the defendant to pay the applicant's costs.

Pleas in law and main arguments

The applicant is a doctoral research fellow and is carrying out a
project on the impact of globalisation on Community environ-
ment and development cooperation law and policy. For this,
the applicant has asked for access to documents in order to
review the background to recent legislation about genetically
modified organisms (GMO). Following the request of the appli-
cant, access to only part of the documents was granted.