Case T-26/07: Action brought on 7 February 2007 — LIPOR v Commission
Date: 2007-04-14
Institutions: Court of First Instance
Subjects: European Commission, Portugal, State aid, action for annulment (EU), control of State aid, principle of proportionality, public contract, redemption

C 82/40

EN

Official Journal of the European Union

14.4.2007

Form of order sought

— miscalculation of the fine in the light of the 1996 Leniency

Notice (2).

— annul the contested decision;

— in the alternative, annul Article 2 of the operative part of

that decision;

— in the further alternative, reduce the amount of the fine

imposed on the applicant in the contested decision;

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

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

(2) Commission Notice of 18 July 1996 on the non-imposition or

reduction of fines in cartel cases (OJ 1996 C 207, p. 4).

Pleas in law and main arguments

Action brought on 7 February 2007 — LIPOR v Commis-
sion

The applicant challenges Commission Decision C(2006) 6765
final of 20 December 2006 in Case COMP/39.234 — Alloy
surcharge re-adoption. In the contested decision, which concerns
the reopening of the proceeding in Case IV/35.814 — Alloy
surcharge, a fine was imposed on the applicant for infringement
of Article 65(1) CS by Thyssen Stahl GmbH (previously Thyssen
Stahl AG) in that it agreed an alteration to the reference values
used to calculate the alloy surcharge and applied that alteration.

The applicant raises ten pleas in law in support of its action:

Parties

(Case T-26/07)

(2007/C 82/89)

Language of the case: Portuguese

— infringement of the principle of nulla poena sine lege, since,
in the absence of transitional provisions, the Commission
had no power to apply retroactively the CS Treaty which
expired in 2002;

— unlawful application of Regulation (EC) No 1/2003 (1), since
it grants entitlement only to apply Articles 81 EC and 82
EC, but not the CS Treaty;

— infringement of the principal of res iudicata, since the Court
of Justice has already given final judgment in the case to the
effect that on the merits the applicant is not liable for the
infringement of Thyssen Stahl AG which was alleged against
it and attributed to it once more in the contested decision;

— lack of responsibility of the applicant by way of a private
declaration of assumption of liability, since such a declara-
tion is declaratory at most;

— infringement of the principle of

legal certainty since the
basis for the penalty and the basis for the attribution of
liability are insufficiently certain;

— infringement of the principle of ne bis in idem, because a fine
has been imposed on the applicant already in the first
proceedings on the same facts, a matter on which the Court
has given final judgment;

— the infringement is time barred;

— infringement of the right of access to the file;

— infringement of the right to be heard due to incomplete

objections; and

Applicant: LIPOR — Serviço Intermunicipalizado de Gestão de
Resíduos do Grande Porto (Gondomar, Portugal) (represented
by: P. Pinheiro, M. Gorjão-Henriques and F. Quintela, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annulment in part of Article 1 of Commission Decision
C(06)5008 of 17 October 2006, addressed to the Portu-
guese State, in so far as it considers that the total assistance
granted by the Cohesion Fund under Commission decisions
Nos C(93)3347/3 of 7 December 1993, C(94)3721 final/3
of 21 December 1994 and C(96)3923 final of 17 December
1996,
reproduced in Decision C(98)2283/f, must be
regarded as reduced by EUR 1 511 591 and of the decision
to order reimbursement of
that amount to the Member
State;

— annulment of Article 1 of the contested decision in so far as
it orders a financial correction of 100 % in relation to the
contracts concluded by the applicant with the IDAD
(Instituto do Ambiente e Desenvolvimento, Environment
and Development Institute) for breach of the principle of
proportionality, and in so far as it orders the Member State
to reimburse EUR 458 683;

— an order that the Commission should pay the costs of the

proceedings, including the applicant's costs;

— as a subsidiary matter, annulment in part of Article 1 of the
contested order for breach of the principle of proportion-
ality, with regard to the contracts concluded by the applicant
with Hidroprojecto;

14.4.2007

EN

Official Journal of the European Union

C 82/41

— again as a subsidiary matter, the applicant requests that the
Court of First Instance, if it should consider that Lipor has
not satisfied all the requirements of Directive 92/50/EC,
should order the Commission, because of breach of
the
principle of proportionality, to fix at 100 % the financial
correction relating to the financing of the contracts with
Hidroprojecto.

Action brought on 5 February 2007 — Denka International
v Commission

(Case T-30/07)

(2007/C 82/90)

Pleas in law and main arguments

Language of the case: English

In support of its action the applicant alleges errors of law, mani-
fest errors of assessment, insufficient and inaccurate reasoning
and breach of the principle of proportionality.

So far as the contract concluded by the applicant with Hidro-
projecto in 1989 is concerned, the applicant claims that the
Commission erred in its assessment of the value of Block D of
the contract.

With regard to the contract concluded by the same bodies in
1997, the applicant claims that the Commission erred in its
assessment, not understanding that those contracts were,
in
part, the realisation of the 1989 contract and, in part, exten-
sions of that contract which proved necessary as the project
developed. It also criticises the Commission for having consid-
ered that the contracts ought to have been awarded by open
tendering procedure. In the applicant's view, even if it were to
be held that those contracts were independent of the 1989
contract and that they crossed the threshold value fixed by
the exception
Directive 92/50 for award by open tender,
provided for by Article 11 of that directive was applicable to
them.

In respect of the contracts of 28 March and 28 April 1995, also
concluded by the same bodies, the applicant claims that the
Commission made an error of assessment in regarding them as
a single contract and as an extension of the 1989 contract and
in asserting that the award of the procurement contract ought
to have been preceded by a call for tenders. It argues that there
are in fact two contracts concluded on different dates. One of
them was concluded following a restricted invitation to tender
and the other did not cross the value threshold that would have
made it subject to the tendering procedure. In any case, both
were concluded in accordance with Portuguese law at a time
when Directive 92/50 had not yet been transposed into
domestic law.

Finally, with regard to the contracts concluded by the applicant
with IDAD in 1999, the applicant, although admitting that the
Commission could consider them together in order to deter-
mine their respective values and whether they were subject to
the rules governing public procurement contracts, explains the
reasons which led it to enter into separate contracts and claims
that IDAD is a public body and, as such, a contracting authority
for the purposes of Directive 92/50. Consequently, it takes the
view that the Commission ought to have taken those reasons
into account and not ordered a financial correction of 100 %.
According to the applicant, that correction runs counter to the
principle of proportionality.

Parties

Applicant: Denka International BV (Barneveld, The Netherlands)
(represented by: K. Van Maldegem, C. Mereu, lawyers)

Defendant: Commission of the European communities

Form of order sought

— annulment of Article 2(b) and Annex II of Commission

Directive 2006/92/EC; and

— order the defendant to pay all costs and expenses in these

proceedings, as well as interests thereof.

Pleas in law and main arguments

By means of its application, the applicant seeks partial annul-
ment of Commission Directive 2006/92/EC (1), of 9 November
2006, amending Annexes to Council Directives 76/895/EEC,
86/362/EEC and 90/642/EEC as regards maximum residue
levels for dichlorvos (hereinafter the ‘the MRL Directive’ or ‘the
contested measure’) and in particular
its Article 2(b) and
Annex II thereof.

The applicant claims that these provisions modify the maximum
residue level for the substance at stake from the previously
applicable 2 mg/kg to a new threshold value of 0.01 mg/kg
based on an underlying assessment of the applicant's dossier
conducted
of Directive
related
the
91/414/EEC (hereinafter,
‘PPPD’) that is procedurally, scientifi-
cally and legally flawed.

assessment

under

Procedurally, the applicant submits that the contested measure
was adopted in violation of the procedural safeguards set out in
Article 8 of Regulation 451/2000 and the auditum alteram
partem principle or principle to a fair hearing, while it also
infringes the duty to state reasons (Article 235 EC). In addition,
the applicant claims that through the adoption of the contested
measure the Commission misused its powers, as it achieved the
same objective as a decision of non-inclusion without having
recourse to such decision.