CELEX: C1995/315/37
Language: en
Date: 1995-11-25 00:00:00
Title: Action brought on 25 September 1995 by BASF Lacke + Farben AG against the Commission of the European Communities (Case T-175/95)

No C 315/ 18          EN                  Official Journal of the European Communities                                  25 . 11 . 95
Action brought on 19 September 1995 by Valentino Chesi,              1995 by Erich Biedermann, Walter W. Hedderich and
Margot Jost and Ralph Loebisch against the Council of the            Alfred Wienrich, residing in Germany, represented by
                       European Union                                Georges Vandersanden and Laure Levi, of the Brussels Bar,
                       ( Case T-l 72/95 )                            with an address for service in Luxembourg at the offices of
                                                                     Fiduciaire Myson Sari , 1 Rue Glesener.
                         ( 95/C 315/35 )
                                                                     The applicants claim that the Court should :
               (Language of the case: French)
                                                                     — annul the applicants ' pension statements for December
An action against the Council of the European Union was                  1994, drawn up pursuant to Council Regulation ( EC )
brought before the Court of First Instance of the European               No 3161 /94 of 19 December 1994, inasmuch as that
Communities on 19 September 1995 by Valentino Chesi,                     regulation lays down a weighting for Germany at the
Margot Jost and Ralph Loebisch, residing in Germany,                     rate fixed for its capital , Berlin, only with effect from
represented by Georges Vandersanden and Laure Levi , of                  1 July 1994 and not from 3 October 1990, and , in so far
the Brussels Bar, with an address for service in Luxembourg              as may be necessary, annul the decision of the Court of
at the offices of Fiduciaire Myson Sari, 1 , Rue Glesener.               Auditors of 18 July 1995 rejecting the applicants '
                                                                         complaint,
The applicants claim that the Court should :                         — reinstate the applicants ' pension rights in full, weighted
                                                                         at the rate fixed for Berlin, with effect from 3 October
— annul the applicants' pension statements for December                  1990 ,
    1994, drawn up pursuant to Council Regulation ( EC )
    No 3161 /94 of 19 December 1994 , inasmuch as that               — order the defendant to pay default interest on the
    Regulation lays down a weighting for Germany at the                  pension arrears for the period from 3 October 1990 to
    rate fixed for its capital, Berlin , only with effect from           30 June 1994 , calculated in relation to the same period ,
    1 July 1994 and not from 3 October 1990 , and, in so far             at the annual rate of 10% ,
    as may be necessary, annul the decision of the Council of
    19 June 1995 rejecting the applicants' complaint,                — order the defendant to pay all of the costs .
— reinstate the applicants' pension rights in full , weighted        Pleas in law and main arguments adduced in support:
    at the rate fixed for Berlin, with effect from 3 October
    1990 ,                                                           The pleas and main arguments are the same as those in Case
                                                                     T-171 /95 .
— order the defendant to pay default interest on the
    pension arrears for the period from 3 October 1990 to
    30 June 1994 , calculated in relation to the same period,
    at the annual rate of 10% ,
— order the defendant to pay all of the costs .
                                                                     Action brought on 25 September 1995 by BASF Lacke +
                                                                     Farben AG against the Commission of the European
Pleas in law and main arguments adduced in support:                                            Communities
                                                                                            ( Case T-175 /95
The pleas and main arguments are the same as those in Case
T-171 /95 .
                                                                                              ( 95 /C 315/37 )
                                                                                   (Language of the case: German)
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 25 September
Action brought on 19 September 1995 by Erich                         1995 by BASF Lacke + Farben AG, represented by
Biedermann, Walter W. Hedderich and Alfred Wienrich                  Ferdinand Hermanns, Rechtsanwalt, Meerbusch ( Federal
against the Court of Auditors of the European                        Republic of Germany ), with an address for service in
                          Communities                                Luxembourg at the Chambers of Loesch & Wolters , 1 1 Rue
                       ( Case T-173/95 )                             Goethe .
                         ( 95/C 315/36 )
                                                                     The applicant claims that the Court should :
               (Language of the case: French)                        — annul the defendant's decision of 12 July 1995 , notified
                                                                         on 21 July 1995 , concerning a proceeding under
An action against the Court of Auditors of the European                  Article 85 of the EC Treaty ( Case IV/33.802 — BASF
Communities was brought before the Court of First                        Lacke + Farben AG and SA Accinauto ) in so far as it
Instance of the European Communities on 19 September                     concerns the applicant,
 ---pagebreak--- 25 . 11 . 95           EN                    Official Journal of the European Communities                                  No C 315/ 19
— in the alternative, cancel or mitigate the fine imposed on                Treaty, such infringement was negligible in its effects .
    the applicant by Article 2 of the said Decision,                        The part of the market which was affected by the Treaty
                                                                            and by the single case of non-delivery was so minuscule
— order the defendant to pay all of the costs of the                        that there can be no question of market conditions
    proceedings incurred by the applicant,                                  having been effected .
— order the defendant, in the event that the applicant is               5 . The defendant's assumption regarding the duration of
    successful, to reimburse to the applicant the costs of the              the agreement is untenable . Since there was in any event
    bank guarantee provided by the applicant as security for                only one single case of refusal to supply, a distinction
    the payment of the fine .                                               should have been drawn in assessing the duration .
Pleas in law and main arguments adduced in support:                     6 . The defendant has abused its discretionary powers . It
                                                                            has failed to have reasonable regard to :
I. The applicant complains of infringement of essential
procedural requirements .                                                   — the gravity of the infringement,
1 . The defendant refused to allow the applicant's                          — the duration of the alleged infringement,
     representative the complete access to the file to which he
     was entitled on grounds of equality of arms .                          — the economic situation of the applicant, or
     Consequently, the applicant was disadvantaged in                       — the absence of intent .
     putting forward its defence .
2 . The applicant was not provided with a translation into
     German , the language of the proceeding applicable in its
     case , of the minutes of the hearing on 23 September
     1993 . This constitutes an infringement of Article 3 of
     Regulation No 1 of the Council of 15 April 1958 . It also
     resulted at the same time in a restriction of the                  Action brought on 25 September 1995 by Accinauto SA
     applicant's ability to defend itself.                                against the Commission of the European Communities
                                                                                                 ( Case T-176/95 )
II . The agreement concluded on 8 October 1 982 between                                            ( 95/C 315/38 )
the applicant and Accinauto does not infringe Article 85 ( 1 )
of the EC Treaty .
                                                                                       (Language of the case: German)
1 . The defendant could not have reached the contrary
     conclusion were it not for the totally inadequate
     clarification of the circumstances . The conduct of the            An action against the Commission of the European
                                                                        Communities was brought before the Court of First
     parties was caused by the supply problems existing                 Instance of the European Communities on 25 September
     during the period in question and the need to ensure
                                                                        1995 by Accinauto SA, Brussels , represented by Helmut
     uniformity in the provision of supplies to all of the
                                                                        Glassen, Rechtsanwalt, Leimen ( Federal Republic of
     markets served by the applicant.                                   Germany ), with an address for service in Luxembourg at the
                                                                        Chambers of Loesch & Wolters, 1 1 Rue Goethe .
2 . There is nothing in the wording of the Treaty, or the way
     in which it is applied, which conflicts with that
     interpretation . In the light of the evolution of the Treaty,      The applicant claims that the Court should :
     and the way in which it is applied, the term 'pass on '
     used in the agreement can only have meant that the                 — annul the defendant's decision of 12 July 1995 , notified
     applicant was to be kept informed about the flow of                    on 24 July 1995 , concerning a proceeding under
     goods . That was a legally unobjectionable practice . The              Article 85 of the EC Treaty ( Case IV/33.802 — BASF
     provision of such information was particularly                         Lacke + Farben AG and SA Accinauto ) in so far as it
     indispensable in times of shortage, in order to ensure, as             concerns the applicant,
     far as possible, uniformity of supply to the different
     markets     and    to    avoid    a   situation    in  which
                                                                        — in the alternative, cancel or mitigate the fine imposed on
     coach-building works switched to other competitors .
                                                                            the applicant by Article 2 of the said decision,
3 . If the evidence submitted is interpreted in the light of
     that background, it becomes clear that its overall                 — order the defendant to pay all of the costs of the
     context supports the applicant's case : the conduct of the             proceedings incurred by the applicant,
     parties involved is due purely and solely to the shortage
     situation and the problems arising from it. It cannot be           — order the defendant, in the event that the applicant is
     attributed to any collusion .                                          successful , not only to reimburse to the applicant the
                                                                            amount of the fine but also to pay it interest at the same
4 . Even if the agreement in question could be regarded as                  rate ( 9,5 % ) as that fixed by the defendant in Article 2 ( 2 )
     constituting an infringement of Article 85 ( 1 ) of the EC             of the contested decision .