Joined Cases C-120/06 P and C-121/06 P: Judgment of the Court (Grand Chamber) of 9 September 2008 — Fabbrica italiana accumulatori motocarri Montecchio SpA (FIAMM), Fabbrica italiana accumulatori motocarri Montecchio Technologies Inc (FIAMM Technologies), Giorgio Fedon & Figli SpA, Fedon America, Inc. v Council of the European Union, Commission of the European Communities, Kingdom of Spain (Appeals — Recommendations and rulings of the World Trade Organisation (WTO) Dispute Settlement Body — Determination of the Dispute Settlement Body that the Community regime governing the import of bananas was incompatible with WTO rules — Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports of certain products from various Member States — Retaliatory measures authorised by the WTO — No non-contractual Community liability — Duration of the proceedings before the Court of First Instance — Reasonable period — Claim for fair compensation)
Date: 2008-09-09
Institutions: Court of Justice
Subjects: Council of the European Union, European Commission, United States, appeal to the Court (EU), customs duties, import policy, indemnification, telecommunications equipment, trade dispute, tropical fruit

8.11.2008

EN

Official Journal of the European Union

C 285/3

Other parties to the proceedings: Council of the European Union
(represented by: M. Bishop, E. Finnegan and E. Karlsson, acting
as Agents), Commission of the European Communities (repre-
J. Enegren and P.J. Kuijper, acting as
sented by: C. Brown,
Agents), United Kingdom of Great Britain and Northern Ireland
(represented by: R. Caudwell, E.
Jenkinson and S. Behzadi-
Spencer, acting as Agents, and C. Greenwood QC, and A. Dash-
wood, Barrister)

in support of

the Council of

(represented by:

the European Union:
Interveners
Kingdom of Spain,
J. Rodríguez Cárcamo,
acting as Agent), French Republic (represented by: G. de
Bergues, E. Belliard, and S. Gasri, acting as Agents), Kingdom of
the Netherlands (represented by: H.G. Sevenster and M. de Mol,
acting as Agents)

Intervener in support of the Commission of the European Commu-
nities: French Republic (represented by: G. de Bergues, E. Belliard
and S. Gasri, acting as Agents)

Re:

lodged against

the judgment of

(Second Chamber,

Extended Composition)

the Court of First
Appeal
Instance
of
21 September 2005 in Case T-315/01 Yassin Abdullah Kadi v
Council and Commission, in which the Court of First Instance held
(a) that there was no need to adjudicate on the application for
annulment of Commission Regulation (EC) No 2062/2001 of
19 October 2001 amending, for the third time, Council Regu-
lation (EC) No 467/2001 of 6 March 2001 prohibiting the
export of certain goods and services to Afghanistan, strength-
ening the flight ban and extending the freeze of funds and other
financial resources in respect of the Taliban of Afghanistan, and
repealing Regulation (EC) No 337/2000 (OJ L 277, p. 25), in so
far it added the applicant to the list of persons, entities and
bodies affected by the freezing of funds imposed by that regu-
lation, and (b) dismissed as unfounded the application for annul-
ment of Council Regulation (EC) No 881/2002 of 27 May 2002
imposing certain specific restrictive measures directed against
certain persons and entities associated with Usama bin Laden,
the Al-Qaeda network and the Taliban, and repealing Regulation
(EC) No 467/2001 (OJ L 139, p. 9),
in so far as those acts
concerned him

lodged against

the judgment of

(Second Chamber,

Extended Composition)

the Court of First
Appeal
Instance
of
21 September 2005 in Case T-306/01 Yusuf and Al Barakaat
International Foundation v Council and Commission, in which the
Court of First Instance dismissed an application for annulment
of Council Regulation (EC) No 881/2002 of 27 May 2002
imposing certain specific restrictive measures directed against
certain persons and entities associated with Usama bin Laden,
the Al-Qaeda network and the Taliban, and repealing Regulation
(EC) No 467/2001

Operative part of the judgment

The Court:

2. Annuls Council Regulation (EC) No 881/2002 of 27 May 2002
imposing certain specific
restrictive measures directed against
certain persons and entities associated with Usama bin Laden, the
Al-Qaeda network and the Taliban, and repealing Council Regu-
lation (EC) No 467/2001 prohibiting the export of certain goods
and services to Afghanistan, strengthening the flight ban and
extending the freeze of funds and other financial resources in respect
of the Taliban of Afghanistan, in so far as it concerns Mr Kadi
and the Al Barakaat International Foundation;

3. Orders the effects of Regulation No 881/2002 to be maintained,
so far as concerns Mr Kadi and the Al Barakaat International
Foundation, for a period that may not exceed three months running
from the date of delivery of this judgment;

4. Orders the Council of the European Union and the Commission of
the European Communities each to pay, in addition to their own
costs, half of those incurred by Mr Kadi and Al Barakaat Interna-
tional Foundation both at first instance and in these appeals;

5. Orders the United Kingdom of Great Britain and Northern Ireland
to bear its own costs both at first instance and in these appeals;

6. Orders

the Kingdom of Spain,

the French Republic and the

Kingdom of the Netherlands to bear their own costs.

(1) OJ C 36, 11.2.2006.
OJ C 48, 25.2.2006.

italiana

Judgment of the Court (Grand Chamber) of 9 September
2008 — Fabbrica
accumulatori motocarri
Montecchio SpA (FIAMM), Fabbrica italiana accumulatori
motocarri Montecchio
(FIAMM
Technologies), Giorgio Fedon & Figli SpA, Fedon America,
Inc. v Council of the European Union, Commission of the
European Communities, Kingdom of Spain

Technologies

Inc

(Joined Cases C-120/06 P and C-121/06 P) (1)

(Appeals — Recommendations and rulings of the World Trade
Organisation (WTO) Dispute Settlement Body — Determin-
ation of the Dispute Settlement Body that the Community
regime governing the import of bananas was incompatible
with WTO rules — Imposition by the United States of
America of retaliatory measures in the form of increased
customs duty levied on imports of certain products from
various Member States — Retaliatory measures authorised by
the WTO — No non-contractual Community liability —
Duration of the proceedings before the Court of First Instance
— Reasonable period — Claim for fair compensation)

(2008/C 285/04)

Language of the case: Italian

1. Sets aside the judgments of the Court of First Instance of the
European Communities of 21 September 2005 in Case T-315/01
Kadi v Council and Commission and Case T-306/01 Yusuf and
Al Barakaat International Foundation v Council and Commission;

Parties

Appellants: Fabbrica italiana accumulatori motocarri Montecchio
accumulatori motocarri
italiana
SpA (FIAMM),

Fabbrica

C 285/4

EN

Official Journal of the European Union

8.11.2008

Montecchio Technologies Inc.
(FIAMM Technologies), Giorgio
Fedon & Figli SpA, Fedon America, Inc. (represented by: I. Van
Bael, A. Cevese, F. Di Gianni and R. Antonini, avocats)

Judgment of the Court (Third Chamber) of 11 September
2008 (reference for
a preliminary ruling from the
Audiencia Provincial de Madrid, Spain) — CEPSA
Estaciones de Servicio SA v LV Tobar e Hijos SL

Other parties to the proceedings: Council of the European Union
(represented by: A. Vitro, S. Marquardt and A. De Gregorio
Merino, acting as Agents), Commission of
the European
Communities (represented by: P.J. Kuijper, V. Di Bucci, C.
Brown and E. Righini, acting as Agents), Kingdom of Spain
(Case C-120/06 P) (represented by: E. Braquehais Conesa and M.
Muñoz Pérez, acting as Agents)

Intervener in support of the Council of the European Union and the
Commission of the European Communities: Kingdom of Spain (Case
C-121/06 P) (represented by: M. Muñoz Pérez, acting as Agent)

(Case C-279/06) (1)

(Competition — Agreements, decisions and concerted practices
— Agreements between undertakings — Article 81 EC —
Regulation (EEC) No 1984/83 — Articles 10 to 13 — Regu-
lation No 2790/1999 — Article 4(a) — Exclusive supply
contract for petroleum products between a service-station
operator and an oil company — Exemption)

(2008/C 285/05)

Language of the case: Spanish

Re:

Appeal against the judgment of
the Court of First Instance
(Grand Chamber) of 14 December 2005 in Case T-69/00
FIAMM and FIAMM Technologies v Council and Commission,
dismissing as unfounded an action for compensation for
damage allegedly suffered by the appellants as a result of retalia-
tory measures taken by the United States authorities in relation
to a series of Community goods, including batteries manufac-
tured and exported by the appellants,
in the context of the
dispute concerning the European regime governing the import
of bananas

Appeal against the judgment of
the Court of First Instance
(Grand Chamber) of 14 December 2005 in Case T-135/01
Fedon & Figli and Fedon America v Council and Commission,
dismissing as unfounded an action for compensation for
damage allegedly suffered by the appellants as a result of retalia-
tory measures taken by the United States authorities in relation
to a series of Community goods,
including spectacle cases
manufactured and exported by the appellants, in the context of
the dispute concerning the European regime governing the
import of bananas

Operative part of the judgment

The Court:

1. Dismisses the main appeals;

2. Dismisses the cross-appeals;

3. Orders Fabbrica italiana accumulatori motocarri Montecchio SpA,
Fabbrica italiana accumulatori motocarri Montecchio Technologies
LLC, Giorgio Fedon & Figli SpA and Fedon America, Inc. to bear
the costs incurred by the Council of the European Union and the
Commission of the European Communities;

4. Orders the Kingdom of Spain to bear its own costs.

(1) OJ C 108, 6.5.2006.

Referring court

Audiencia Provincial de Madrid

Parties to the main proceedings

Applicant: CEPSA Estaciones de Servicio SA

Defendant: LV Tobar e Hijos SL

Re:

Reference for a preliminary ruling — Audiencia Provincial de
Madrid — Interpretation of Article 81(1) EC and Articles 10
to 13 of Commission Regulation (EEC) No 1984/83 of 22 June
1983 on the application of Article 85(3) of the Treaty to cate-
gories of exclusive purchasing agreements (OJ 1983 L 173, p. 5)
— Exclusive distribution contracts for fuels classified as agency
or commission contracts but having certain specific features

Operative part of the judgment

1) An exclusive supply contract for motor-vehicle and other fuels, as
well as lubricants and other related products, is capable of falling
within the scope of Article 81(1) EC where the service station
operator assumes,
in a non-negligible proportion, one or more
financial and commercial risks linked to the sale of those products
to third parties and where that contract contains clauses capable of
infringing competition, such as that relating to the fixing of the
retail price. If the service-station operator does not assume such
risks or assumes only a negligible share of them, only the obliga-
tions imposed on the operator in the context of services as an inter-
mediary offered by the operator to the principal, such as the exclu-
sivity and non-competition clauses, are capable of falling within the
scope of that provision. It is for the referring court to ascertain,
moreover, whether the contract concluded on 7 February 1996
between CEPSA Estaciones de Servicio SA and LV Tobar e Hijos
SL has the effect of preventing, restricting or distorting competition
within the meaning of Article 81 EC.

2) An exclusive supply contract, such as that

referred to in the
preceding paragraph of this operative part, is capable of benefiting
from a block exemption provided for in Commission Regulation
(EEC) No 1984/83 of 22 June 1983 on the application of
Article [81](3) of the Treaty to categories of exclusive purchasing
(EC)
agreements,
No 1582/97 of 30 July 1997, if it complies with the maximum
duration of 10 years referred to in Article 12(1)(c) of that regu-
in
lation and if the supplier grants the service-station operator,

by Commission Regulation

amended

as