Case T-18/05: Action brought on 19 January 2005 by IMI plc, IMI Kynoch Ltd. and Yorkshire Copper Tube against the Commission of the European Communities
Date: 2005-03-19
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), control of restrictive practices, equal treatment, fine, ironmongery

19.3.2005

EN

Official Journal of the European Union

C 69/25

Action brought on 12 January 2005 by the Italian Republic
against the Commission of the European Communities

(Case T-14/05)

(2005/C 69/44)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 12 January 2005 by the Italian
Republic, represented by Danilo Del Gaizo, Avvocato dello
Stato.

The applicant claims that the Court should:

— declare that Commission Regulation (EC) No 1809/2004 is

void ab initio;

— order the Commission to pay the costs.

Pleas in law and main arguments

This action is brought against Commission Regulation (EC) No
1809/2004 of 18 October 2004 amending Regulation (EC) No
2848/98 laying down detailed rules for the application of the
quota buy-back programme in the raw tobacco sector (OJ L
318 of 19.10.2004) (‘the contested regulation’). The contested
regulation adds to Article 36(1) of Regulation No 2848/98 a
subparagraph which provides for a buy-back price for tobacco
quotas relating to the 2004 harvest fixed at an amount equal to
40 % of the premium and states that that amount is to be paid
before 31 May 2005.

The Italian Government takes the view that the contested regu-
lation infringes Council Regulation (EEC) No 2075/92 (1) (and
in particular Article 14a thereof) and that there is infringement
of an essential procedural requirement and misuse of powers.

In particular, the setting of a quota buy-back price for quotas
bought back in respect of the 2004 harvest, which is, more-
over, particularly high,
identical and undifferentiated for all
producers and for all qualities of tobacco varieties, payable
almost
in the Italian
Government's view, contrary to Article 14a of Council Regu-
lation No 2075/92, as amended, inter alia, by Regulation No
1636/98.

immediately in a single payment,

is,

the single payment scheme,

minimum level of aid which the farmer can receive under the
direct payment scheme set up by Council Regulation (EC) No
1782/2003 of 29 September 2003 … Moreover, with a view
the
to the implementation of
payment period for the buy-back price should be kept to a
minimum.’ In that regard,
it contends that the provisions of
Regulation No 2075/92 were not repealed for the year under
consideration (or for 2005) and that the Commission was not
therefore authorised to use for the level of the buy-back price a
legal basis completely different from the one which it should
have adhered to in performing the operation or to pursue
objectives completely different
from and contrary to those
which, on the basis of Council Regulation No 2075/92, should
have justified its adoption.

The Italian Government further alleges a failure to give reasons
for the contested measure, both in respect of the setting of a
buy-back price which is the same for all producers and takes
no account of the individual varieties of tobacco produced and
in respect of the quantification of the price at an amount equal
to 40 % of the premium, as well as a conflict between the
provisions of Article 1 of the contested regulation, the state-
ments contained in its third recital and the reasons clearly
stated in its second recital.

(1) Council Regulation (EEC) No 2075/92 of 30 June 1992 on the
common organization of the market in raw tobacco (OJ L 215 of
30.07.1992, p. 70).

Action brought on 19 January 2005 by IMI plc,
Kynoch Ltd. and Yorkshire Copper Tube against

IMI
the

Commission of the European Communities

(Case T-18/05)

(2005/C 69/45)

(Language of the case: English)

The Italian Government also considers that the setting of the
contested level of the buy-back price cannot be regarded as
being justified, and certainly cannot be justified by the reasons
stated in the third recital in the preamble to the contested regu-
lation, according to which: ‘For quotas under the 2004 harvest,
the
the buy-back price should be fixed on the basis of

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 19 January 2005 by IMI plc, estab-
IMI Kynoch Ltd.,
lished in Birmingham (United Kingdom),
established in Birmingham (United Kingdom) and Yorkshire
Copper Tube, established in Liverpool (United Kingdom), repre-
sented by M. Struys and D. Arts, lawyers.

C 69/26

EN

Official Journal of the European Union

19.3.2005

The applicants claim that the Court should:

— annul Article 1 insofar as it relates to the companies listed
in Article 1 (h), (i) and (j) and annul Article 2 (f) of the
Commission Decision dated 3 September 2004 and
amended by written procedure on 20 October 2004 in case
COMP/E-1/38.069-copper plumbing tubes;

— alternatively, reduce the fines imposed on the applicants;

The applicants furthermore claim that the Commission violated
the principle of non-discrimination and made a manifest error
in finding that the applicants participated without interruption
in the arrangements while no continuity could be established in
respect of certain other undertakings. According to the appli-
cants, their situation is identical to that of those other under-
takings. The applicants also invoke in this respect a violation of
their rights of defence in that the Commission relied in the
decision on elements that had not been taken into considera-
tion in the statement of objections.

— order the Commission to pay the costs.

Finally, the applicants submit a violation of the principle of
proportionality in the determination of the fines.

Pleas in law and main arguments

In the contested decision, the Commission found an infringe-
ment of Article 81(1) EC and Article 53(1) EEA by several
undertakings in the copper plumbing sector. The infringement
comprised three separate manifestations: arrangements among
the so-called SANCO producers, arrangements among the so
called WICU and Cuprotherm producers and arrangements
among the broader group of copper plumbing tube producers.
According to the decision, the applicants were not aware or
could not have reasonably foreseen the SANCO arrangements
and the WICU and Cuprotherm arrangements.

In support of their application, the applicants submit a viola-
tion of the principle of non-discrimination. According to the
applicants, the Commission favoured, because of the way it
conducted its investigation, some of
the undertakings. The
applicants state that they were the last companies to receive a
request for information and therefore were also the last to
apply for leniency, resulting in only a 10 % reduction of the
fine on that ground.

The applicants furthermore submit that the Commission erred
in finding that the SANCO arrangements were not significantly
tighter than the arrangements in the broader group. They also
submit that the absence of differentiation at the level of the
fines between the participants in the SANCO arrangements and
participants in the broader group of producers, violates the
principle of non-discrimination and the principle according to
which responsibility for violating competition law is personal
in nature.

The applicants also contest the conclusion to impose the same
fine on the applicants and the producers that participated in
the broader arrangement and the WICU and Cuprotherm
this conclusion
arrangements. The applicants
the principle
violates
according to which responsibility for violating competition law
is personal in nature and that the decision is not sufficiently
reasoned on this point.

the principle of non-discrimination,

submit

that

Action brought on 18 January 2005 by the Italian Republic
against the Commission of the European Communities

(Case T-26/05)

(2005/C 69/46)

(Language of the case: Italian)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 18 January 2005 by the Italian
Republic,
represented by Antonio Cingolo, avvocato dello
Stato.

The applicant claims that the Court should:

1. annul:

— the memorandum of 9 November 2004 SPD – Emilia-

Romagna;

— the memorandum of 10 November 2004 NOP Research;

— the memorandum of 12 November 2004 SPD Piemonte,
PEP Calabria, PEP Molise, SPD Toscana, PEP Sicilia, SPD
Marche, SPD Friuli-Venezia Giulia, PEP Campania, SPD
Liguria;

— the memorandum of 16 November 2004 SPD

Lombardia, SPD Veneto;

— the memorandum of 17 November 2004 SPD Lazio;

— the memorandum of 18 November 2004 NOP Local

enterprise development;