Case C-413/08 P: Appeal brought on 22 September 2008 by Lafarge SA against the judgment delivered by the Court of First Instance (Third Chamber) on 8 July 2008 in Case T-54/03 Lafarge SA v Commission of the European Communities
Date: 2008-09-22
Institutions: Court of Justice
Subjects: European Commission, appeal, building industry, equal treatment, fine, legal hearing, plaster

20.12.2008

EN

Official Journal of the European Union

C 327/11

Reference for a preliminary ruling from the Finanzgericht
Baden-Württemberg (Germany) lodged on 22 September
2008 — Swiss Caps AG v Hauptzollamt Singen

Form of order sought

(Case C-411/08)

(2008/C 327/18)

Language of the case: German

Referring court

Finanzgericht Baden-Württemberg

Parties to the main proceedings

Applicant: Swiss Caps AG

Defendant: Hauptzollamt Singen

Questions referred

1. Is Rule 5 of the General Rules for the Interpretation of the
Combined Nomenclature (Annex I
to Council Regulation
(EEC) No 2658/87 of 23 July 1987 — Combined Nomencla-
ture (CN)) (1)
to be interpreted as meaning that capsule
casings which consist of granulated starch and contain
substances for supplementing the diet are to be regarded as
packing material?

2. If the reply to the first question is in the negative:

Is heading 1515 of the Combined Nomenclature to be inter-
preted as meaning that granulated starch capsule casings
containing 580 mg of concentrated wheat-germ oil deter-
mine the character of the goods in such a way that the
goods are excluded from heading 1515 of the Combined
Nomenclature?

(1) OJ 1987 L 256, p. 1.

Appeal brought on 22 September 2008 by Lafarge SA
the judgment delivered by the Court of First
against
Instance (Third Chamber) on 8 July 2008 in Case T-54/03
Lafarge SA v Commission of the European Communities

(Case C-413/08 P)

(2008/C 327/19)

Language of the case: French

— Set aside the judgment of the Court of First Instance of the
European Communities of 8 July 2008 in Case T-54/03
Lafarge SA v Commission and, granting the form of order
sought at first instance, consequently annul, on the basis of
Article 229 of the EC Treaty, Article 61 of the Statute of the
Court of
Justice and Article 17 of Council Regulation
No 17/62 (1), now Article 31 of Council Regulation
No 1/2003 (2), Commission Decision No 2005/471/EC of
27 November 2002 (3), in so far as it imposed a fine on the
appellant;

— in the alternative, set aside in part the judgment of the
Court of First Instance in Case T-54/03 Lafarge SA v Commis-
sion and, granting the form of order sought at first instance,
consequently reduce the amount of the fine imposed by the
Commission on the appellant in Decision No 2005/471/EC
of 27 November 2002;

— order the Commission to pay the costs.

Pleas in law and main arguments

The appellant relies on six grounds in support of its appeal.

By its first ground, the appellant company submits that the
Court of First Instance distorted the sense of the facts presented
for its assessment, in so far as it held that the Commission had
been able validly to establish the very existence of the infringe-
ments by reference to a context in which information was, alleg-
edly, unlawfully exchanged on a world-wide basis, which
resulted in restricting competition and stabilising the plaster-
board market.

By its second ground, the appellant pleads infringement of the
rules governing the burden of proof, the principle of presump-
tion of innocence and its corollary, the in dubio pro reo principle,
in that the Court of First Instance considered that the Commis-
sion had established that the appellant had participated in a
single, complex, continuous infringement, without there even
being any evidence capable of establishing the existence and
duration of the infringement.

By its third ground, the appellant contends that the Court of
First Instance infringed the obligation to state adequate grounds
and the principle of equal treatment, in so far as it confirmed
the Commission's view that a number of items of evidence was
sufficient for the purpose of establishing that the appellant had
committed the infringement, whereas that same evidence had
been regarded as insufficient for the purpose of establishing the
same infringement on the part of a competing company.

Parties

Appellant: Lafarge SA (represented by: A. Winckler, F. Brunet, E.
Paroche and H. Kanellopoulos, avocats)

Other parties to the proceedings: Commission of the European
Communities, Council of the European Union

By its fourth ground, the appellant submits that the Court of
First Instance infringed the principles of proportionality and
in so far as it failed to review the starting
equal treatment,
amount of the fine imposed, which was set by the Commission
without taking account of Lafarge's turnover or its market share
by comparison with those of its competitors.

C 327/12

EN

Official Journal of the European Union

20.12.2008

the Commission was

Instance committed a number of errors of

By its fifth ground, the appellant contends that the Court of
First
law and
infringed its duty to state adequate grounds, in so far as it held
justified in increasing the fine
that
imposed on the appellant on the ground of repeated infringe-
ment, whereas there was no legal basis or any definitive finding
in that regard capable of
In so
doing, the Court of First Instance also infringed the general prin-
ciple that penalties must have a proper legal basis as well as the
principles of
legal certainty and the sound administration of
justice.

justifying such an increase.

Lastly, by its sixth and final ground, the appellant submits that
the Court of First Instance erred in law by finding that the
Commission was justified in increasing the starting amount of
the fine by way of a deterrent, whereas it should have taken
account of the final amount of that fine in order to determine
whether it was appropriate to increase the fine on such a basis.

(1) Council Regulation No 17 of 7 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty (OJ English Special
Edition 1959-1962, p. 87.

(2) 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).

(3) Commission Decision

2002
of
COMP/E-1/37.152 — Plasterboard (OJ 2005 L 166, p. 8).

27 November

against
2004/38/EC (1) of 29 April 2004?

expulsion

under Article

28(3)(a)

of Directive

(1) Directive 2004/38/EC of

64/221/EEC,

the European Parliament and of

the
Council of 29 April 2004 on the right of citizens of the Union and
their family members to move and reside freely within the territory
of the Member States, amending Regulation (EEC) No 1612/68 and
72/194/EEC,
repealing Directives
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
(Corrigendum to Directive
93/96/EEC (OJ 2004 L 158, p. 77).
2004/38/EC of
the Council of
the European Parliament and of
29 April 2004 on the right of citizens of the Union and their family
members to move and reside freely within the territory of
the
Member States, amending Regulation (EEC) No 1612/68 and
repealing Directives
72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and
93/96/EEC (OJ 2004 L 229, p. 35)).

64/221/EEC,

68/360/EEC,

68/360/EEC,

Reference for a preliminary ruling from the Conseil d'Etat
(Belgium) lodged on 26 September 2008 — Enviro Tech
(Europe) LTD v Belgian State

in

Case

(Case C-425/08)

(2008/C 327/21)

Language of the case: French

Reference for a preliminary ruling from the Verwaltungs-
gericht Berlin (Germany) lodged on 23 September 2008 —
Yasar Erdil v Land Berlin

Referring court

Conseil d'Etat

(Case C-420/08)

(2008/C 327/20)

Language of the case: German

Referring court

Verwaltungsgericht Berlin

Parties to the main proceedings

Applicant: Yasar Erdil

Defendant: Land Berlin

Question referred

Can a Turkish national whose legal status is derived from the
second indent of the first paragraph of Article 7 of Decision
No 1/80 of the Association Council of 19 September 1980 on
the Association between the European
the development of
Economic Community and Turkey and who has
lived in
Germany since his birth in 1989 rely on the special protection

Parties to the main proceedings

Applicant: Enviro Tech (Europe) Ltd

Defendant: Belgian State

Questions referred

Question 1:

— In so far as it classifies nPB as a highly flammable substance
(R11) on the basis of a single test carried out at a tempera-
ture of – 10 °C, does Directive 2004/73/EC (1) comply with
Framework Directive 67/548/EEC (2),
in particular with
point A.9 of Annex V to that directive which lays down the
methods for determining flash points?

toxic for

reproduction (R60),

— Does Directive 2004/73/EC comply with Framework Direc-
tive 67/548/EEC, in particular with point 4.2.3 of Annex VI
to that directive, in so far as it classifies nPB as a category 2
substance which is
first,
without clear results in appropriate animal studies where
toxic effects have been observed to provide a strong
presumption that human exposure to the substance may
result in developmental toxicity and, secondly, on the basis
of
tests in which toxicity was detected only in animals
subjected to a concentration of 250 ppm, that is to say
11 times the maximum and 40 times the average of the
concentration of nPB to which a person is exposed when
handling the product?