Case C-411/08: Reference for a preliminary ruling from the Finanzgericht Baden-Württemberg (Germany) lodged on 22 September 2008 — Swiss Caps AG v Hauptzollamt Singen
Date: 2008-09-22
Institutions: Court of Justice
Subjects: Combined Nomenclature, Germany, chemical compound, food supplement, interpretation of the law, packaging, starch, vegetable oil

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.