Case T-566/08: Action brought on 17 December 2008 — Total Raffinage Marketing v Commission
Date: 2008-12-17
Institutions: Court of First Instance
Subjects: European Economic Area, Germany, action for annulment (EU), oil refining, petroleum product

C 55/38

EN

Official Journal of the European Union

7.3.2009

Action brought on 17 December 2008 — Corsica Ferries
France v Commission

(Case T-565/08)

(2009/C 55/68)

Language of the case: French

— infringement of Articles 87 EC and 88 EC and their imple-
menting rules, in particular the Community Guidelines on
State aid for rescuing and restructuring firms in difficulty,
resulting from an inaccurate and/or incomplete assessment
regarding the capital contribution of EUR 53.48 million
under public service compensation; the sale of SNCM at a
negative selling price of EUR 158 million; the capital contri-
bution by CGMF amounting to EUR 8.75 million; social
measures amounting to EUR 38.5 million; and the balance
of EUR 22.5 million notified under restructuring aid.

Parties

Applicant: Corsica Ferries France SAS (Bastia, France)
sented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

(repre-

Action brought on 17 December 2008 — Total Raffinage
Marketing v Commission

Defendant: Commission of the European Communities

Forms of order sought

— declare the present action admissible;

— annul the Commission Decision of 8 July 2008 in relation
to restructuring aid which France plans to grant to Société
Nationale Maritime Corse-Méditerranée (SNCM);

— order the Commission to pay all the costs.

Parties

(Case T-566/08)

(2009/C 55/69)

Language of the case: French

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2008) 3182 final of 8 July 2008, in which the Commission
had stated that:

— the compensation paid by the French Republic to Société
Nationale Maritime Corse-Méditerranée (‘SNCM’), amounting
to EUR 53.48 million in respect of public service obliga-
tions, constitutes illegal State aid which is nevertheless
compatible with the common market;

— the negative selling price of SNCM of EUR 158 million; the
implementation, by Compagnie Générale Maritime et Finan-
cière (‘CGMF’), of social measures in respect of employees in
the amount of EUR 38.5 million; and the joint and conco-
mitant re-capitalisation of SNCM by CGMF in the amount of
EUR 8.75 million do not constitute State aid; and

— restructuring aid amounting to EUR 15.81 million which
the French Republic granted to SNCM constitutes illegal
State aid which is nevertheless compatible with the common
market;

Applicant: Total Raffinage Marketing SA (Puteaux, France) (repre-
sented by: A. Vandencasteele, C. Falmagne, C. Lemaire and S.
Naudin, lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— annul,

in part, Articles 1 and 2 of Commission Decision
C(2008) 5476 final of 1 October 2008 relating to a
proceeding under Article 81 of the EC Treaty and Article 53
of
(Case COMP/39.181 — Candle
waxes);

the EEA Agreement

— very substantially reduce the amount of the fine imposed on

Total R.M. by Article 2 of that decision;

— order the Commission to pay all of the costs.

Pleas in law and main arguments

In support of its action, the applicant puts forward two pleas in
law alleging:

— failure to state reasons and breach of the applicant's rights
to an effective judicial remedy,
of defence and its right
insofar as too much of the data and information in the
contested decision was blacked out for its content, reasoning
and scope to be understood;

By its present action, the applicant seeks the annulment, in part,
of Commission Decision C(2008) 5476 final of 1 October
in which the
2008 in Case COMP/39.181 — Candle waxes,
including the
Commission found that certain undertakings,
the
applicant,
Agreement on the European Economic Area, by price-fixing and
sharing markets in paraffin waxes in the European Economic
Area (EEA), and slack wax in Germany.

infringed Article 81(1) EC and Article 53 of

7.3.2009

EN

Official Journal of the European Union

C 55/39

In support of its action, the applicant puts forward 11 pleas in
law alleging infringement of: Article 81 EC; the duty to state
reasons; the 2006 Guidelines on the method of setting fines (1);
and the principles of proportionality, the presumption of inno-
cence,
the penalty
should fit the offence, in that the Commission:

legal certainty, equal

treatment and that

— held that the practices relating to waxes and paraffin, on the
one hand, and to slack wax, on the other, constituted a
single and continuous infringement, and held the practices
in relation to slack wax to be an agreement;

— wrongly found a

single and continuous

infringement
consisting of an agreement for price-fixing; market and/or
it was merely an exchange of
customer sharing, even if
information concerning the state of
the paraffin market;
prices and future strategies in relation to tariffs; the custo-
mers and the volumes which could be attributed to the
applicant;

— first, misinterpreted the Community case-law on undertak-
ings publicly distancing themselves by holding the applicant
responsible for the entire duration of the wax and paraffin
aspect of the cartel, although the applicant had ceased to
participate in ‘technical meetings’ after
the meeting of
11 and 12 May 2004, that is to say, nearly one year before
the infringement and, second, allowed the
the end of
intended withdrawal of Repsol from the cartel before the
end of
the applicant,
the infringement, and not that of
although the applicant was in an equivalent situation;

— required the applicant to prove that it publicly distanced

itself from the cartel;

— did not take account of the applicant's failure to implement

the cartel;

— used the value of sales from the last three financial years in
which the applicant had participated in the cartel, instead of
the value of sales for the last year in which it had partici-
pated;

— found a percentage of the value of sales for the slack wax

aspect of the infringement which was too high;

— applied the method for setting the fine laid down in point 24
of the Guidelines which is contrary to Article 23(3) of Regu-
lation No 1/2003 and to the principles of proportionality,
equal treatment and presumption of innocence;

— applied an additional amount for deterrent effect without,

however, providing sufficient reasons for that;

— imposed a fine representing 410 % of the turnover obtained

in one year by the applicant on the relevant market;

— held the parent company, Total SA, responsible for the appli-

cant's behaviour.

(1) Guidelines on the method of setting fines imposed pursuant to
Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

Appeal brought on 19 December 2008 by Bart Nijs against
the judgment of the Civil Service Tribunal delivered on
9 October 2008 in Case F-49/06 Nijs v Court of Auditors

(Case T-567/08 P)

(2009/C 55/70)

Language of the case: French

Parties

Appellant: Bart Nijs (Bereldange, Luxembourg) (represented by
F. Rollinger, lawyer)

Other party to the proceedings: Court of Auditors of the European
Communities

Form of order sought by the appellant

— declare the appeal admissible;

— declare the appeal founded;

— accordingly, annul the order of 9 October 2008 in Case
the European

F-5/07 Bart Nijs v Court of Auditors of
Communities.

Pleas in law and main arguments

By this appeal, the applicant seeks annulment the judgment of
the Civil Service Tribunal (the Tribunal) of 9 October 2008 in
Case F-49/06 Nijs v Court of Auditors dismissing, as partially
inadmissible and partially unfounded, the action for, first, annul-
ment of the decision not to promote the applicant to grade
A*11 for the 2005 promotion procedure and, second, damages.

In support of his appeal,
grounds of appeal:

the applicant puts forward four

— distortion of the application and the reply inasmuch as the
judgment under appeal replaces a plea alleging that there
was no decision by the appointing authority,
implying a
total lack of motivation, by a completely different plea;

— disregard and/or distortion of

the evidence, the Tribunal

having excluded it;

— wrong attribution of the burden of proof inasmuch as the
Tribunal should have required proof of the defendant's alle-
gations;

— breach of the principle of the presumption of innocence
concerning the order that the appellant pay the costs at first
instance.