Case C-338/07 P: Appeal brought on 20 July 2007 by Distribuidora Vizcaína de Papeles, S.L. against the judgment of the Court of First Instance (Fifth Chamber) of 26 April 2007 in Joined Cases T-109/02 Bolloré v Commission , T-118/02 Arjo Wiggins Appleton v Commission , T-122/02 Mitsubishi HiTec Paper Bielefeld v Commission , T-125/02 Papierfabrik August Koehler v Commission , T-126/02 M-real Zanders v Commission , T-128/02 Papeteries Mougeot v Commission , T-129/02 Torraspapel v Commission , T-132/02 Distribuidora Vizcaína de Papeles v Commission , and T-136/02 Papelera Guipuzcoana de Zicuñaga v Commission
Date: 2007-09-22
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), appeal, competition, control of restrictive practices, fine, offence, pulp and paper industry, tax system, type of business

22.9.2007

EN

Official Journal of the European Union

C 223/7

Form of order sought

— Annul the contested judgment of the Court of First Instance
of 3 May 2007 in Case T-357/02 Freistaat Sachsen v Commis-
sion of the European Communities in its entirety;

— give final judgment on the matter and dismiss the action as

unfounded;

— order the applicant at first instance to bear the costs of the
appeal proceedings and the costs incurred at first instance in
Case T-357/02.

Pleas in law and main arguments

Appeal brought on 20 July 2007 by Distribuidora Vizcaína
de Papeles, S.L. against the judgment of the Court of First
Instance (Fifth Chamber) of 26 April 2007 in Joined Cases
T-109/02 Bolloré v Commission, T-118/02 Arjo Wiggins
Appleton v Commission, T-122/02 Mitsubishi HiTec Paper
Bielefeld v Commission, T-125/02 Papierfabrik August
Koehler v Commission, T-126/02 M-real Zanders v Commis-
sion, T-128/02 Papeteries Mougeot v Commission, T-129/02
Torraspapel v Commission, T-132/02 Distribuidora Vizcaína
Papelera
de

T-136/02
Guipuzcoana de Zicuñaga v Commission

v Commission,

Papeles

and

(Case C-338/07 P)

(2007/C 223/08)

Language of the case: Spanish

According to the Commission, the contested judgment infringes
Articles 88(2) and (3) EC, the second paragraph of Article 249,
Article 254(2) EC, Article 3 et
seq. of Regulation (EC)
No 659/1999 (1) and Article 10(1) of the Regulation exempting
SMEs, since the Court of First Instance failed to recognise that
the examination of
the contested decision
(2003/226/EC) (2) was to be carried out solely in accordance
with the provisions of the Regulation exempting SMEs (Regu-
lation (EC) No 70/2001) (3).

the legality of

Parties

Appellant: Distribuidora Vizcaína de Papeles, S.L.
by: E. Pérez Medrano, lawyer)

(represented

Other party to the proceedings: Commission of
Communities

the European

The Regulation exempting SMEs entered into force before the
contested decision was issued and was thus directly applicable.
Consequently,
framework.
it was the only applicable legal
According to the Commission, the Court wrongly denies the
applicability of the Regulation exempting SMEs since it erro-
neously assumed that the Regulation exempting SMEs would
have to be applied retroactively in the case of the contested deci-
sion.

The Commission claims, in the alternative, that the contested
judgment also infringes Article 2(2) and Article 4(5) of Regu-
lation (EC) No 659/1999 because the Court misconceived the
criterion of assessment and the requirements of completeness of
a notification.

(1) OJ 1999 L 83, p. 1.
(2) OJ 2003 L 91, p. 13.
(3) OJ 2001 L 10, p. 33.

Form of order sought

— Declare the present action admissible and well founded;

— annul the contested judgment in full or in part on the
ground of all, or some, of the legal grounds set out below is
so far as it affects the appellant, and draw from the annul-
ment of that judgment all legal consequences, whether the
Court rules expressly on the substance or refers the case
back to the Court of First Instance;

— declare the annulment or reduction of the fine imposed by
Commission Decision 2004/337/EC of 20 December
2001 relating to a proceeding pursuant to Article 81 of the
EC Treaty and Article 53 of
(Case
COMP/E-1/36.212 — Carbonless paper) (1), which is being
appealed against;

the EEA Agreement

— order the Commission to pay the whole of the costs of the

proceedings;

— order the Commission to pay the costs of the action for
annulment proceedings relating to the contested judgment.

C 223/8

EN

Official Journal of the European Union

22.9.2007

Pleas in law and main arguments

— order the Italian Republic to pay the costs.

1. Infringement of the right to a fair hearing in relation to the
assessment of the alleged participation in certain meetings of
the cartel on the Spanish market and participation in a
European cartel.

2. Infringement of the presumption of innocence in respect of
the assessment of the alleged infringements as a result of
circumstantial evidence.

3. Infringement of Community law in connection with the
disproportionate and unfair nature of the fine in respect of
its severity, its calculation and the application of attenuating
circumstances, and a lack of reasoning in the assessment of
certain attenuating circumstances.

4. Infringement of the right to a fair hearing within a reason-

able period of time.

Pleas in law and main arguments

The period for transposition of Directive 2004/41/EC expired
on 1 January 2006.

(1) OJ 2004 L 157, p. 33.
(2) OJ 1989 L 395, p. 13.
(3) OJ 1992 L 62, p. 49.
(4) OJ 1995 L 243, p. 17.

(1) OJ 2004 L 115, p. 1.

Action brought on 2 August 2007 — Commission of the
European Communities v Italian Republic

Action brought on 25 July 2007 — Commission of the
European Communities v Italian Republic

(Case C-347/07)

(2007/C 223/09)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Cattabriga, acting as Agent)

Defendant: Italian Republic

(Case C-368/07)

(2007/C 223/10)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: K. Simonsson and E. Montaguti, acting as Agents)

Defendant: Italian Republic

Form of order sought

— declare that, by failing to draw up and adopt, in respect of
each Italian port, waste reception and handling plans, the
Italian Republic has failed to fulfil its obligations under Arti-
cles 5(1) and 16(1) of Directive 2000/59/EC of
the
European Parliament and of the Council of 27 November
2000 on port reception facilities for ship-generated waste
and cargo residues (1);

Form of order sought

— order the Italian Republic to pay the costs.

the European Parliament and of

— declare that, by failing to adopt the laws, regulations and
administrative provisions necessary to comply with Directive
2004/41/EC (1) of
the
Council of 21 April 2004 repealing certain directives
concerning food hygiene and health conditions for
the
production and placing on the market of certain products of
animal origin intended for human consumption and
amending
Directives
and
92/118/EEC (3) and Council Decision 95/408/EC (4) or,
in
any event, by failing to communicate those provisions to the
Commission, the Italian Republic has failed to fulfil its obli-
gations under Article 8 of that directive;

89/662/EEC (2)

Council

Pleas in law and main arguments

The period for
28 December 2002.

transposition of

the directive expired on

(1) OJ 2000 L 332, p. 81.