Case T-240/07: Action brought on 4 July 2007 — Heineken Nederland and Heineken v Commission
Date: 2007-07-04
Institutions: Court of First Instance
Subjects: action for annulment (EU), beer, beverage industry, competition law, fine, unlawful agreement

8.9.2007

EN

Official Journal of the European Union

C 211/43

Form of order sought

Action brought on 4 July 2007 — Heineken Nederland and
Heineken v Commission

— Declare

the

that

2006-
09120304D1021001FD1507 has not been validly termi-
nated by the Education, Audiovisual & Culture Executive
Agency and remains in force;

contract

No

— Order

the Education, Audiovisual & Culture Executive
Agency to pay to the applicant the sum of EUR 9 737
remaining payable to it under the contract.

Pleas in law and main arguments

it

requests that

the
By the present action based on an arbitration clause,
applicant
the defendant be ordered to make
payment of a sum equivalent to the balance remaining payable
to
2006-
09120304D1021001FD1507 in relation to Community finan-
cial support of a project for videographic distribution of a film
within the ‘MEDIA Plus’ programme adopted by Council Deci-
sion 2002/821/EC (1).

implementation

contract

No

of

in

The contract was signed by the parties on 27 June 2006 and an
advance was paid by the defendant to the applicant as provided
for by the contract. On 8 May 2007, the defendant sent a letter
to the applicant purporting to terminate the contract on the
ground that the real total costs were lower than the project's
provisional budget and that no written explanation had been
provided in the submitted financial report on the project, and
requesting repayment of the sum paid as an advance. The appli-
cant considers, however, that, as provided for in the contract,
the defendant's contribution to the project was to be as high as
50 % of the real costs of videographic distribution, and accord-
ingly requests payment of a sum still due in addition to the sum
paid in advance.

In support of its action, the applicant claims that termination of
the contract by the defendant is irregular and unfounded, since
it has disregarded the terms of the contract as to the procedure
for termination, and in particular, it has not allowed the appli-
cant any period in which to respond on the implementation of
the contract. According to the applicant, the Court should rule
that the contract remains in force.

Further, the applicant disputes the grounds of termination of
the contract which are relied on by the defendant, namely
failure to perform its contractual obligations.

(1) 2000/821/EC: Council Decision of 20 December 2000 on the imple-
mentation of a programme to encourage the development, distribu-
tion and promotion of European audiovisual works (MEDIA Plus —
Development, Distribution and Promotion) (2001-2005), OJ L 336,
p. 82.

(Case T-240/07)

(2007/C 211/81)

Language of the case: Dutch

Parties

Applicants: Heineken Nederland BV and Heineken NV (repre-
sented by: T. Ottervanger and M.A. de Jong, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— set aside in whole or in part the decision addressed to, inter

alia, the applicants;

— set aside or reduce the fine imposed on the applicants;

— order the Commission to pay the costs of

the present

proceedings.

Pleas in law and main arguments

The applicants are challenging the Commission decision of
18 April 2007 relating to a proceeding under Article 81 EC
(Case COMP/B-2/37.766 — Netherlands beer market), by which
a fine was imposed on the applicants.

In support of their action, the applicants first put forward a
number of procedural heads of complaint. First, they allege
infringement of the principle of sound administration during
the investigation and breach of Article 27 of Regulation
the Commission refused access to the
No 1/2003 in that
the
the other undertakings. Second,
defence submissions of
applicants allege that the Commission failed to carry out a
careful and impartial investigation. Third, the applicants submit
that the conduct of the Competition Commissioner amounted
to an infringement of the principle of the presumption of inno-
cence. Fourth, they claim that the Commission failed to comply
with the requirement that proceedings be concluded within a
reasonable period of time, as a result of which the applicants
argue that their rights of defence were breached.

The applicants further allege a breach of Article 81 EC. In that
connection, the applicants first submit that there was a defective
adduction of evidence, disregard for the presumption of inno-
cence and infringement of the principle that reasons must be
given. Second, the applicants dispute the contention that there
were agreements and/or concerted practices in this case. Third,
the applicants argue that the Commission erred in its calculation
of the duration of the alleged breach.

C 211/44

EN

Official Journal of the European Union

8.9.2007

The applicants also put forward a number of heads of complaint
concerning the determination of the amount of the fine. They
first allege a breach of Article 23(3) of Regulation No 1/2003,
incorrect application of the guidelines on setting fines, infringe-
ment of the principles of equality, legal certainty and propor-
tionality and breach of
the obligation to state reasons. The
applicants argue that the Commission erred in its assessment of
the gravity of the breach, in particular through misappraisal of
the nature of the breach, by failing to take account of the negli-
gible market impact and through its incorrect determination of
the relevant geographical market. They further claim that the
Commission erred in determining the basic amount of the fine,
the multiplication factor for the deterrent effect and the dura-
tion. In addition, it is alleged that the Commission failed to take
adequate account of the mitigating circumstances and that the
unduly lengthy duration of
the administrative proceedings
resulted in a disproportionately high fine by reason of the fact
that Commission policy in regard to the level of fines had
become stricter in the intervening period.

In conclusion, the applicants submit that the reduction applied
by the Commission to the amount of the fine by reason of the
unreasonable length of
the administrative proceedings was
disproportionately modest.

which envisage that the operator may maintain part of the
allocated allowances in the event of ‘closure due to processes
of production rationalisation’ (Article 1(4) and Article 2(4)
of the Decision);

— Order the Commission to pay to the applicant all the costs

of these proceedings.

Pleas in law and main arguments

allocation plan notified by

The decision contested by this action has determined that the
national
letter of
15 December 2006 is incompatible with Directive 2003/87/EC
of the European Parliament and of the Council of 13 October
2003 establishing a scheme for greenhouse gas emission allow-
ance trading within the Community and amending Council
Directive 96/61/EC.

Italy by

The specific point at issue is the possibility for the operator to
the allocated allowances in the event of
maintain part of
closure, due to processes of rationalisation, of all or part of the
production installations.

Action brought on 10 July 2007 — Buzzi Unichem v
Commission

In support of its claims, the applicant submits:

(Case T-241/07)

(2007/C 211/82)

Language of the case: Italian

Parties

Applicant: Buzzi Unichem SpA (represented by: C. Vivani and M.
Vellano, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission Decision of 15.5.2007 concerning
the national plan for the allocation of greenhouse gas emis-
sion allowances notified by Italy in accordance with Direc-
tive 2003/87/EC of the European Parliament and of the
Council — for infringement of the EC Treaty and the princi-
ples and rules of law adopted in its application — to the
extent that the national allocation plan must be altered so as
to render no longer permissible rationalisation measures

— That the defendant (the Commission) erroneously applied its
own critical analysis in terms of ‘adjustment of allocations’,
excluding the possibility of so-called ‘ex-post adjustments’.
In that regard, the applicant accepts that any type of adjust-
ment may distort the market and create business uncertainty
and infringe Criterion 10 of Annex III to the Directive.
According to the applicant, what is at issue is rather avoid-
ance of the loss of ownership of the allocation, and therefore
loss of the legal capacity to make use of it at other installa-
tions. In essence, the issue should be to avoid an obstacle to
the free organisation and development of an undertaking's
subjective rights, which is moreover contrary to the princi-
ples of reasonableness, proportionality, and protection of
the environment and competition, pursuant to Article 5,
Article 174 and Article 157 EC.

— The contested decision in addition contradicts the logical
premises on which it is based. Specifically on this point, in
recital 4 to the contested decision the Commission itself
admits that
the Directive envisages the possibility that
Member States may introduce adjustments, provided that the
effect of adjustment is not retroactive, and that it does not
harm the functioning of
In the
present case, the operator of an installation which is closed
will continue to be present on the market and to operate at
other authorised installations. In the words of the Commis-
sion itself, an ‘adjustment of allocations’ should therefore be
possible.

the Community system.

— The defendant has failed to explain the reasoning which
led it to hold that the criticised scheme was incompatible as
‘ex-post adjustment’.