Case T-11/05: Action brought on 18 January 2005 by Wieland Werke AG, Buntmetall Amstetten Ges.m.b.H. and Austria Buntmetall AG against the Commission of the European Communities
Date: 2005-04-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, copper, fine, market-sharing agreement, metallurgical industry, price agreement, tube

16.4.2005

EN

Official Journal of the European Union

C 93/29

Action brought on 23 December 2004 by NORTRAIL
Transport GmbH against the Commission of the European
Communities

from 1 September 1995 when the applicant applied for the
duty-free release for free circulation of the goods concerned,
some of those quotas had already been used up, which to some
extent was the case even before 1 September 1995, given the
retrospective opening of quotas with effect from 1 July 1995.

(Case T-496/04)

(2005/C 93/58)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 23 December 2004 by NORTRAIL
Transport GmbH of Kiel (Germany), represented by J Krause,
lawyer.

The applicant claims that the Court should

— annul the decision of the Commission dated 1 October
2004 (REM 15/02) on the application by the company
NORTRAIL Transport GmbH for repayment of
import
duties pursuant to Article 239 of the Customs Code Regu-
lation (EEC) No 2913/92;

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

Pleas in law and main arguments

Since July 1995,
the applicant has continuously imported
consignments of various fishery products from Norway. In the
context of tariff quotas opened pursuant to Council Regulation
(EC) No 3061/95 (1), the applicant applied for the duty-free
release of the goods for free circulation with effect from 1
September 1995. The competent customs office determined
that the customs exemption which the applicant had applied
for could not be granted in respect of a certain number of
consignments, and that the standard tariff rate applied. On that
basis, the relevant customs office demanded that the applicant
pay import duties for the release for free circulation of the
goods concerned. The applicant paid part of the import duties.

The applicant argues that
there are special circumstances
within the meaning of Article 239 of Regulation (EEC) No
2913/1992 (2), as a result of which it is entitled to repayment
and remission of import duties.

The applicant bases this assertion, among other, on the argu-
ment that a Community measure had been adopted with retro-
spective effect. German customs offices were informed of the
opening of tariff quotas with effect from 1 September 1995 by
a notice from the German Federal Ministry of Finance on 31
August 1995. On 4 October 1995, however, German customs
offices were notified that those quotas had in fact been opened
retrospectively with effect from 1 July 1995. In the period

further submits that

The applicant
the measure adopted is
inadequate and misleading, and that the discrepancy between
the date the Community measure was published and the
opening date of the tariff quotas which the measure regulates
and which take effect retrospectively, is misleading. This makes
it possible for national customs authorities to interpret the
opening date of the tariff quotas differently, which infringes the
principle of non-discrimination.

(1) Council Regulation (EC) No 3061/95 of 22 December 1995
amending Regulation (EC) No 992/95 opening and providing for
the administration of Community tariff quotas for certain agri-
cultural and fishery products originating in Norway (OJ 1995 L
327, p. 1).

(2) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ 1992 L 302, p. 1).

Action brought on 18 January 2005 by Wieland Werke
AG, Buntmetall Amstetten Ges.m.b.H. and Austria Bunt-
the European
metall AG against

the Commission of

Communities

(Case T-11/05)

(2005/C 93/59)

(Language of the case: German)

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 Wieland
Werke AG, Ulm (Germany), Buntmetall Anstetten Ges.m.b.H.,
Amstetten (Austria), and Austria Buntmetall AG, Enzesfeld
(Austria), represented by R. Bechtold and U. Soltész, lawyers.

The applicants claim that the Court should:

— annul

the decision of

the Commission of 3 September
2004, amended on 20 October 2004 (Case COMP/E-1/
38.069 – Copper plumbing tubes);

C 93/30

EN

Official Journal of the European Union

16.4.2005

— in the alternative, reduce the fines imposed in the decision;

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

Pleas in law and main arguments

In the contested decision the Commission imposed a fine on
the applicants on the ground that they had infringed Article
81(1) EC by participating in a series of agreements and
concerted practices consisting of price-fixing and market-
sharing in the copper plumbing tubes sector.

to that decision and argue that

The applicants object
the
renewed imposition of fines in the present case offends against
the basic principle ne bis in idem, as the applicants had already
been found by the Commission to have committed a largely
similar infringement in the case of industrial tubes (COMP/E-1/
38.240). The applicants
in determining the
submit
amount of the fines, the Commission should have at least taken
the fines which had already been imposed into account and
that it is impermissible to divide up the single set of copper
tubes proceedings into separate industrial tubes proceedings
and plumbing tubes proceedings.

that,

— the Commission failed to take account of

fundamental
attenuating circumstances, such as the difficult state of the
market, the low percentage return on sales in the copper
piping market sector or the fact that the agreements were
terminated immediately after the searches.

In addition, the Commission infringed the principle of equal
treatment in that, inter alia, it unlawfully discriminated between
undertakings involved in the cartel by applying a greater fine
reduction to certain undertakings on account of cooperation
outside the Leniency Notice.

Finally, the applicants claim that in terms of determining the
starting amount of the fine Article 23(2) of Regulation (EC) No
1/2003 (2) infringes the principle of legal certainty and conse-
it grants the
quently, overriding Community law in that
Commission a virtually unfettered discretion.

(1) 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, 14.1.1998, p. 3).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition under Articles 81 and
82 of the Treaty (OJ 2003 L 1, p. 1).

Furthermore, the applicants argue that the fine is excessive and
that mandatory procedural principles, such as the duty under
Article 253 EC to state the reasons on which a decision is
based and the principles of proportionality and equal treatment
were disregarded when the amount of the fine was being deter-
mined. The applicants base their arguments inter alia on the
following provisions:

— in assessing the gravity of the infringement, the Commis-
sion based its conclusions on an inaccurate and insufficient
assessment of the type of infringement, its effects on the
market and the geographical scope of the agreements,

— in differentiating between the undertakings concerned, the
Commission should not only have taken their market share
into consideration, but also the size of the undertakings in
absolute terms,

— in its decision, the Commission did not give any indication
as to which principles it applied in determining the specific
basic amount of the fines and did not make it unambigu-
ously clear in its notice of objections that it was working
on the premise that the rules on competition had been
infringed in a particularly serious manner,

— in increasing the fine on account of the duration of the
agreements, the Commission incorrectly applied its guide-
lines on the method of setting fines (1) and additionally,
misjudged the fact that the limitation period of the right of
recourse for important issues raised in the case had already
expired,

Action brought on 25 January 2005 by Sergio Rossi S.p.A.
the Office for Harmonisation in the Internal
against

Market (Trade Marks and Designs)

(Case T-31/05)

(2005/C 93/60)

(Language in which the application was lodged: English)

An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on 25
January 2005 by Sergio Rossi S.p.A., established in San Mauro
Pascoli (Italy), represented by A. Ruo, lawyer.

K & L Ruppert Stiftung & Co. Handels-KG, established in Weil-
heim (Germany) was also a party to the proceedings before the
Board of Appeal.

The applicant claims that the Court should:

— annul the contested decision;

— order the Office for Harmonisation in the Internal Market

to pay the applicant's costs.