CELEX: C1995/137/73
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 17 March 1995 by Società Cementerie del Tirreno SpA against the Commission of the European Communities (Case T-87/95)

3 . 6 . 95               EN                 Official Journal of the European Communities                                   No C 137/33
transport services, only the maritime part of the service —            ( f) Finally, several procedural infringements have affected
i.e. the transport by seagoing vessel from or to a Community                   the very basis of the contested Decision, namely failure
port — is subject to the provisions of Regulation ( EEC )                      to use the consultation/conciliation procedures
No 4056/86 , whereas the provision of carrier haulage is                       provided under Regulation ( EEC ) No 4056/86 or the
subject to the provisions of Regulation ( EEC )                                UN Code, the failure to consult the appropriate
No 1017/68 .                                                                   Advisory Committee and failure to give adequate
                                                                               reasoning pursuant to Article 190 of the EC Treaty.
The applicants submit that the contested Decision should be
annulled on the basis of the following reasons :
( a ) A proper definition of the relevant market would lead
       to the conclusion that multimodal transport offered by
       them form part of the market for international                  Action brought on 17 March 1995 by Societa Cementerie
       maritime transport services as a whole. Consequently,           del Tirreno SpA against the Commission of the European
       Regulation ( EEC ) No 4056/86 , and not Regulation                                           Communities
       ( EEC ) No 1017/86 , is the applicable Regulation.                                         (Case T-87/95 )
                                                                                                   ( 95/C 137/73
( b ) In the alternative, even if the Court should accept the
       Commission 's      contention   that   the   line 's inland
       activities are to be regarded as distinct services from the
                                                                                          (Language of the case: Italian)
       viewpoint of Article 85 ( 1 ) on a market for inland
       transport services , the Commission still does not              An action against the Commission of the European
       adequately define or consider the characteristics of this       Communities was brought before the Court of First
       market, and so fails properly to assess whether the             Instance of the European Communities on 17 March 1995
       agreement has an appreciable effect on competition or           by Societa Cementerie del Tirreno SpA ('Cementir'), with its
       inter-State trade within the market.                            registered office in Rome, represented by Gian Michele
                                                                       Roberti and Antonio Tizzano, both of the Naples Bar, with
                                                                       an address for service in Luxembourg at the Chambers of
 (c ) In examining the applicability of Article 85 ( 3 ), the          Alain Lorang, 51 Rue Albert l er.
       Commission ignores the benefits which are brought
       about through network rationalization — and the
       consequent minimization of overall costs to the carrier         The applicant claims that the Court should :
       and thus to the shipper — or the role that a uniform
       multimodal tariff plays in allowing individual lines each       — annul in whole or in part Commission Decision
       to optimize their individual networks, while                           94/815/EC of 30 November 1994 relating to a
       maintaining overall uniformity of rates offered to                     proceeding under Article 85 of the EC Treaty ( Cases
       shippers from any given inland point. At the same time,                IV/33.126 and 33.322 — Cement) ( l ),
       the contested Decision pays no regard to the
       improvements in productivity or technical or economic
       progress that come about through more effective                 — annul or reduce the fine imposed on Cementir under
       container control , more effective movements of                        Article 9 of that Decision,
       containers and all other aspects of the multimodal
       service .                                                       — order the Commission to pay the costs.
 ( d ) The contested Decision keeps silent about the fact that          Pleas in law and main arguments adduced in support:
       few lines conferences, if any, do not have a miltimodal
       tariff. To deny liner conference's block exemption in           The applicant challenges the lawfulness of the Decision in
       Article 3 of Regulation (EEC ) No 4056/86 would                  three respects:
       render the block exemption of no or very little practical
       value to the very class of beneficiaries it was intended to         I.   Fundamental     errors    of   fact  and   law   in  the
       assist. This cannot have been the intention of the
                                                                                ascertainment and legal assessment of the alleged
       Commission in proposing its draft Regulation in 1981                     infringements.
       nor of the Council in adopting Regulation ( EEC )
       No 4056/86 .
                                                                         II . Infringement of essential procedural requirements and
                                                                                of the rights of the defence .
 (e ) The applicant's rights to defence have been violated, in
       that inter alia, the Commission relied extensively on            III. The fine imposed by the Commission was also
       evidence and arguments not relied upon in the                            unlawful and must therefore be annulled or reduced,
       statement of objections and that new allegations were                    either because the alleged infringements were totally or
       made in the Decision which did not appear in the                         partially non-existent or, in the alternative and in any
       statement of objections .                                                event, because the Commission failed correctly to
 ---pagebreak--- No C 137/34           EN                   Official Journal of the European Communities                                      3 . 6 . 95
      determine, or state reasons for, the total amount of the        Action brought on 27 March 1995 by Expeditie- en
      fines imposed, and, in particular, the amount of the fine       Controlebedrijf Codirex BV against the Commission of the
      imposed on the applicant.                                                           European Communities
                                                                                               ( Case T-89/95 )
(') OJ No L 343 , 30 . 12 . 1994 , p . 1 .                                                       ( 95/C 137/75 )
                                                                                      (Language of the case: Dutch)
                                                                      An action against the Commission of the European
Action brought on 23 March 1995 by Blue Circle Industries             Communities was brought before the Court of First
pic against the Commission of the European                            Instance of the European Communities on 27 March 1995
                           Communities                                by Expeditie- en Controlebedrijf Codirex BV, Rotterdam,
                                                                      represented by P. V. F. Bos and N. J. Helder, of the
                        ( Case T-88/95 )
                                                                      Rotterdam Bar, with an address for service in Luxembourg
                          ( 95/C 137/74 )                             at the Chambers of M. Loesch, 8 Rue Zithe .
               (Language of the case: English)                        The applicant claims that the Court should :
An action against the Commission of the European                      ( a ) declare the action admissible;
Communities was brought before the Court of First
Instance of the European Communities on 23 March 1995                 ( b ) annul the decision or measure adopted by the
by Blue Circle Industries pic , represented by Mr Jeremy                    Commission on 14 November 1994 in relation to the
Lever QC ., Mr Nicholas Green, Ms Jessica Simor, Ms Laura                   Netherlands ( reference No REM : 15/94 );
Mc Roberts, Ms Sara Vaughan with an address for service in
Luxembourg at the chambers of Elvinger & Hoss , 15 , Cote             (c ) order the Commission to pay the costs .
d'Eich, L-1450 Luxembourg.
                                                                      Pleas in law and main arguments adduced in support:
The applicant claims that the Court should :
— declare the Commission's Decision 94/815/EC (cases
                                                                      Between 19 February 1981 and 23 June 1983 the applicant,
    IV/33.126 and 33.322 — Cement ) void and annul it in              as a customs forwarding agent, prepared declarations
    its entirety,
                                                                      relating to the import of poultry sections . By reason of
                                                                      subsequently discovered fraud on the part of the importer,
                                                                      the Netherlands customs authorities demanded from the
— in the alternative annul those parts of the Decision that
    the Court considers erroneous or unsafe and reduce the
                                                                      applicant payment of the outstanding additional
                                                                      agricultural levies . The applicant thereupon lodged an
    fine imposed on Blue Circle accordingly, and
                                                                      application for reimbursement pursuant to Article 13 of
                                                                      Council Regulation ( EEC ) No 1430/79 of 2 June 1979 ( 1 ).
— order the Commission to pay Blue Circle's costs .                   The Netherlands submitted that application to the
                                                                      Commission, which held, in its contested decision, that the
Pleas in law and main arguments adduced in support:                   remission of the import duties was not justified .
The applicant submits that the Commission has failed to               The action, which has been brought under Article 173 of the
establish to the requisite legal standard , that is to a degree of    EC Treaty, is based inter alia on the following grounds:
certainty that goes beyond any reasonable doubt, that the
allegations made against it are well founded .                       — infringement of the Commission's procedural rules, in
                                                                           that the decision was not signed by the Commissioner
Secondly, the applicant maintains that the Decision was                    responsible for customs matters,
adopted on the basis of an incorrect procedure and an
incorrect approach to the evidence. In its submission, the           — infringement of the right to a fair hearing . As the party
Decision should be annulled , because the errors of                        directly entitled to the benefit of remission of
procedure — by their very nature — throw serious doubt on                  agricultural levies, the applicant should have been heard
the validity of the Decision and cannot be rectified at this               in the proceedings,
stage .
                                                                     — infringement of Article 13 of Regulation (EEC )
Subsidiarily, the applicant contests the level of the fine; it             No 1430/79 . The Commission wrongly concluded that
contends on that score that the Commission has erred in its
                                                                           no special situation had arisen within the meaning of
determination of the duration and gravity of the                           that provision. The applicant refers in that regard to the
infringements and in its finding that all of the infringements             following circumstances : discrepancy between the
were intentional and serious .
                                                                           principles underlying the applicable Netherlands rules
                                                                           and the Community rules in the matter, the acceptable
                                                                           nature of the invoice values in relation to the market