Case C-3/06 P: Appeal brought on  4 January 2006  by Groupe Danone against the judgment of the Court of First Instance of the European Communities (Fifth Chamber) of  25 October 2005  in Case T-38/02: Groupe Danone v Commission of the European Communities
Date: 2006-02-25
Institutions: Court of Justice
Subjects: General Court (EU), appeal, beverage industry, fine, mitigating circumstances, price agreement, unlawful agreement

25.2.2006

EN

Official Journal of the European Union

C 48/19

The Commission finds that Denmark, although requested to do
so, failed to carry out the calculations necessary to establish
those amounts, which were not paid as own resources to the
Community by reason of the Treaty infringement in question
dating from the 1998 accounting year.

The Commission also finds that the amounts corresponding to
the customs debt in question were not made available to the
Commission before 31 March 2002.

The Commission accordingly finds that, by not establishing its
own resources in respect of imports of military equipment and
making those resources available to the Commission, Denmark
has failed to fulfil its obligations under Articles 2, 9, 10 and 11
of Regulation (EEC, Euratom) No 1552/89 and of Regulation
(EC, Euratom) No 1150/2000.

Action brought on 22 December 2005 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-463/05)

(2006/C 48/36)

(Language of the case: Dutch)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
22 December 2005 by the Commission of
the European
Communities, represented by Dominique Maidani and Wouter
Wils, acting as Agents.

The Commission claims that the Court should:

1. declare that, by not adopting the laws, regulations and
administrative provisions necessary to give effect to Direc-
tive 2002/47/EC (1) of the European Parliament and of the
Council of 6 June 2002 on financial collateral arrangements,
or in any event by not informing the Commission of those
measures, the Kingdom of the Netherlands has failed to
fulfil its obligations under that directive;

2. order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

Article 11 of Directive 2002/47 imposed an obligation on
Member States to bring into force the provisions necessary to
comply with that directive by 27 December 2003 at the latest
and immediately to inform the Commission of those provi-
sions.

The Commission finds that the Kingdom of the Netherlands
has not yet adopted those measures or in any event has not
notified it of them.

(1) OJ 2002 L 168, p. 43.

Appeal brought on 4 January 2006 by Groupe Danone
against the judgment of the Court of First Instance of the
European Communities (Fifth Chamber) of 25 October
2005 in Case T-38/02: Groupe Danone v Commission of
the European Communities

(Case C-3/06 P)

(2006/C 48/37)

(Language of the case: French)

An appeal against the judgment of the Court of First Instance
of the European Communities (Fifth Chamber) of 25 October
2005 in Case T-38/02 Groupe Danone v Commission of the Euro-
pean Communities was brought before the Court of Justice of the
European Communities on 4 January 2006 by Groupe Danone,
represented by A. Winckler and S. Sorinas, avocats.

The appellant claims that the Court should:

— set aside in part, on the basis of Article 225(1) EC and
Article 61 of the Statute, the judgment given by the Court
of First Instance on 25 October 2005 in Case T-38/02
Groupe Danone v Commission of the European Communities in
so far as (i) it dismisses the plea that there was no basis for
taking into account the applicant's repeated infringement as
an aggravating circumstance and (ii) it varies the method of
calculation used by the Commission for the fine imposed;

— grant the forms of order sought by Groupe Danone at first
instance in relation to the plea that there was no basis for
taking into account the applicant's repeated infringement as
an aggravating circumstance and, consequently, on the
basis of Article 229 EC and Article 17 of Regulation No
17 (1), reduce the fine imposed by the Commission;

— reduce, on the basis of Article 229 EC and Article 17 of
Regulation No 17, the amount of the fine pro rata to the
decrease in the reduction for attenuating circumstances
decided on by the Court of First Instance;

— order the Commission to pay the costs.

C 48/20

EN

Official Journal of the European Union

25.2.2006

Pleas in law and main arguments

In support of the present appeal, the appellant raises five pleas
to have the judgment under appeal set aside in part. Those
pleas are based, firstly, on an incorrect interpretation by the
Court of First Instance of the concept of 'repeated infringement'
and, secondly, on the manifest unlawfulness of the amendment
of the method of calculation of the fine which led to a decrease
in the reduction of the fine granted for attenuating circum-
stances and, accordingly, an increase in the amount of the fine
by comparison with that which would have been applicable
had the Court of First Instance reduced the increase for aggra-
vating circumstances from 50 % to 40 % without amending the
method of calculation of the fine used by the Commission.

In support of its arguments in relation to the incorrect interpre-
tation of the concept of repeated infringement, the appellant
relies on three separate pleas.

— By the first plea, the appellant maintains that the Court of
First Instance failed to take account of the principle that
offences and penalties must be defined by law and its corol-
lary, the principle of non-retroactivity of more severe crim-
inal laws, by confirming the increase in the appellant's fine
for the aggravating circumstance of repeated infringement,
in the absence of a clear and sufficiently foreseeable legal
basis.

— By its second plea, the appellant maintains that the Court
of First Instance incorrectly applied the principle of legal
certainty by refusing to limit in time the application of
the
repeated infringement, contrary to the case-law of
Court of Justice.

— Finally, by its third plea, the appellant maintains that the
is vitiated by a contradiction in the grounds
judgment
amounting to a defect in the statement of grounds in rela-
tion to the assessment of the link between repeated infrin-
gement and the need to ensure that fines be sufficiently
deterrent.

The appellant raises two further pleas in support of its argu-
ment
the
in relation to the manifestly unlawful nature of
increase in the amount of the fine decided on by the Court of
First Instance following the change in the weighting applied for
extenuating circumstances. The main plea relates to misuse of
power, lack of jurisdiction and infringement of Articles 229 EC
and 230 EC on the part of the Court of First Instance. That
plea is divided into two parts.

— The first part is based on the fact that the Court of First
Instance failed to observe the limits of its jurisdiction under
Articles 229 EC and 230 EC by varying the Commission's
decision in relation to the method of calculation of the fine.

— In the second part, the appellant complains that the Court
of First Instance ruled ultra petita in amending the percen-
tage reduction applied for attenuating circumstances and,
consequently, increasing the amount of the fine imposed on
the appellant.

In the alternative, the appellant puts forward a second plea
based on infringement of the rights of the defence and the prin-
ciple of non-retroactivity of penalties. By failing to allow discus-
sion on its intention to amend the method of calculation of the
fine and increase the amount of the fine, the Court of First
Instance acted in breach of a fundamental principle of Com-
munity law with a real impact on the ability of the appellant to
defend itself. The Court of First
Instance also retroactively
applied to the ‘Belgian Beer’ decision of 2001 case-law dating
from 2003, clarifying the method of applying the weighting for
attenuating circumstances in the method of calculation of the
fine.

(1) Regulation No 17: First Regulation implementing Articles 85 and

86 of the Treaty (OJ, English Special Edition 1959-62, p. 87).

Appeal brought on 4 January 2006 by J. Ouariachi against
the order of the Court of First Instance (Fifth Chamber) of
26 October 2005 in Case T-124/04: J. Ouariachi v Commis-
sion of the European Communities

(Case C-4/06 P)

(2006/C 48/38)

(Language of the case: French)

An appeal against the order of the Court of First Instance (Fifth
Chamber) of 26 October 2005 in Case T-124/04 J. Ouariachi v
Commission of the European Communities was brought before the
Court of Justice of the European Communities on 4 January
2006 by J. Ouariachi, Rabat
(Morocco), represented by L.
Dupong, avocat.

The appellant claims that the Court should:

— annul the contested decision and, in so doing:

— order all measures of inquiry necessary to establish the
falsification by Mr Louis Charles of certain documents,
his general conduct in connection with the abduction of
the appellant's children and the connection between the
falsification and the issue of visas to the appellant's chil-
dren by the Sudanese authorities which made their
abduction possible, including;

— Mr Louis Charles' personal appearance before the Court;