CELEX: C1996/095/35
Language: en
Date: 1996-03-30 00:00:00
Title: Action brought on 6 February 1996 by the Stichting Certificatie Kraanverhuurbedrijf and the Federatie van Nederlandse Kraanverhuurbedrijven against Commission of the European Communities (Case T-18/96)

No C 95/18          f EN                 Official Journal of the European Communities                                       30 . 3 . 96
Action brought on 6 February 1996 by the Stichting                  that finding also on an explicit, reviewable Decision
Certificatie Kraanverhuurbedrijf and the Federatie van              concerning a legally valid application for exemption under
Nederlandse Kraanverhuurbedrijven against Commission                Article 85 ( 3 ). In the alternative, the applicants claim that
                of the European Communities                         the Commission has infringed the system established by
                        ( Case T-18/96 )                            Regulation No 17, in particular Articles 3 , 4, 6 and 9
                                                                    thereof.
                          ( 96/C 95/35 )
                (Language of the case: Dutch)                       Incorrect appraisal under Article 85 ( 1 ). The applicants
                                                                    claim that the certification system has not restricted
An action aigainst the Commission of the European                   competition, because the system, which operates objective
Communities was brought before the Court of First                   and non-discriminatory requirements, is open to each
Instance of the European Communities on 6 February 1996             crane-hire business, including those from other Member
by the Stichting Certificatie Kraanverhuurbedrijf and the           States . The system provides for the acceptance of equivalent
Federatie van Nederlandse Kraanverhuurbedrijven , whose             guarantees by systems established by other private
registered offices are both at Culemborg ( Netherlands ),           institutions within the Community . The independence and
represented by M. van Empel , of the Amsterdam Bar, and             neutrality of the certifying institution is guaranteed . The
T. Janssens, of the Brussels Bar, with an address for service       SCK 's certification system is transparent: the SCK's method
in Luxembourg at the Chambers of M. Loesch, 11 Rue                  of working is freely ascertainable by any person and the
Goethe .                                                            necessary requirements for certification are accessible to any
                                                                    crane-hire company . The rates established, which were
The applicants claim that the Court should:                         withdrawn following a judgment of a national court, were
                                                                    non-binding, recommended rates . The SCK is a certification
1 . declare the Decision (') to be non-existent, since its          body and not an undertaking for the purposes of Article 85 ,
    operative part states that Article 85 ( 1 ) is applicable and   because it does not carry on any economic activity, nor is it
    a fine is imposed in that regard on the SCK and on the          an association of undertakings . Intra-Community trade
    FNK respectively, but no Decision is adopted regarding          is not affected having regard to the regional nature of
    the applications made by the SCK and the FNK for                the activities . The 'prohibition on hiring' cranes from
    exemption under Article 85 ( 3 ) of the EC Treaty;              non-certificated undertakings , which is linked to the
2 . in the alternative, declare the Decision wholly void,           certification system, is the only way of ensuring the validity
    or as the case may be , annul the decision on the               and reliability of the system . Furthermore, it satisfied the
                                                                    requirements of European norm EN 45011 .
    abovementioned grounds;
3 . in the further alternative, annul the Decision for breach       In the recitals to the decision the Commission misapplied
    of Article 85 of the EC Treaty, Article 6 of the European       Article 85 ( 3 ): the certification system, the recommended
    Convention on the Protection of Human Rights, general           rates and the standard rates satisfy the requirements of
    principles of law and the duty to state the reasons upon        Article 85 ( 3 ): improving crane-hire, consumers allowed a
    which the Decision was based ( Article 190 of the EC            fair share of the benefits, indispensability, competition not
    Treaty );                                                       eliminated .
4 . in the further alternative, annul the Decision in so far as
    it imposes a fine upon the SCK and on the FNK;                  The reasonsing of the Decision is insufficient with regard to
                                                                    all those matters .
5 . order the Commission to pay the costs .
                                                                    Infringement of the rights of the defence : excessive length of
Pleas in law and main arguments adduced in support:                 the proceeding; failure to hear the parties before the
The Decision claims that the FNK operated a system of               Decision pursuant to Article 15 ( 6 ) of Regulation 17; refusal
recommended and standard rates and that the SCK                     to grant access to the file .
prohibited its member firms from hiring cranes from firms
which were not members (' inhuurverbod').                           (') Commission Decision of 29 November 1995 relating to a
                                                                        proceeding under Article 85 of the EC Treaty ( IV/34.179 ,
Failure to adopt a Decision regarding Article 85 ( 3 ). There           34.202 , 216 — Stichting Certificatie Kraanverhuurbedrijf en de
can be no legally valid finding regarding the applicability of          Federatie van Nederlandse Kraanverhuurbedrijven ) ( C(95 )
Article 85 of the EC Treaty, if the Commission fails to base            2952 final ).