CELEX: C1995/101/29
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 16 February 1995 by Eerste Nederlandse Cementindustrie (ENCI) NV against the Commission of the European Communities (Case T-31/95)

No C 101/ 12          EN                   Official Journal of the European Communities                                     22 . 4 . 95
Pleas in law and main arguments adduced in support:                   Articles 2 and 4 of Regulation No 99/63 , in that the
                                                                      Commission did not allow it to put forward its views on the
                                                                      fundamental differences between the nature and reasoning
The applicant asserts, first of all, that the Commission              of the objections made against it and the Commission's
seriously infringed its rights to a fair hearing, in that, first, it  views as set out in the statement of objections .
allowed it only the most limited access to the file relating to
the proceeding, in complete contravention of the case-law of
the Court of First Instance and of its legitimate expectations,       As regards the fine, the applicant maintains that the
and, second, it denied the applicant access to the                    Commission, which has not shown the existence of the
exculpatory material contained in the sections relating to            alleged ' Cembureau agreement', was not entitled to impose
'national' objections, thereby preventing it from obtaining           on it a fine of ECU 100 000 in respect of that infringement.
information arising from the withdrawal of the said                   It also considers that the Commission infringed its right to a
objections .                                                          fair hearing by failing to warn it of its intention to impose a
                                                                      fine on it. Lastly, the applicant considers that the
                                                                      Commission has not legally justified the criteria on which it
                                                                      based its calculation of the duration of the infringement for
The applicant further considers that the contested decision           the purposes of determining the amount of the fine.
is vitiated by errors of fact and of law. The Commission:
— has failed to show that the applicant and its members
     were ever informed of the conclusion of the alleged
     ' Cembureau agreement' and, a fortiori, that the
     applicant and its members authorized or approved the             Action brought on 16 February 1995 by Eerste Nederlandse
     applicant's participation in the said agreement,                 Cementindustrie (ENCI) NV against the Commission of the
                                                                                            European Communities
— has failed to demonstrate the existence of the alleged                                        (Case T-31/95 )
     'Cembureau agreement' on non-transhipment to home                                           ( 95/C 101 /29 )
     markets and regulation of trade between member
     countries,
                                                                                        (Language of the case: Dutch)
— has failed to characterize in legal terms the objection             An action against the Commission of the European
     concerning the alleged rules designed to ensure fair             Communities was brought before the Court of First
     competition, and has not incorporated it as such in the          Instance of the European Communities on 16 February
     operative part of the decision,                                  1995 by Eerste Nederlandse Cementindustrie ( ENCI) NV,
                                                                      established at 's-Hertogenbosch, represented by B. W.
                                                                      Biesheuvel and T. M. Snoep, of the Hague Bar, with an
— has not indicated fully in what way the price information           address for service in Luxembourg at the Chambers of L.
     exchanged at the meetings of Head Delegates, the                 Frieden, 6 Avenue Guillaume .
     indefinite and innocuous nature of which is apparent
     from all the available documents, could have been such
     as to strengthen the alleged ' Cembureau agreement' or           The applicant claims that the Court should:
     permit the alleged establishment of rules governing 'fair
     or healthy or correct' competition,                              A.      primarily:
                                                                         (i ) annul the (contested parts of the ) decision of the
— has based its assessment of the exchange of statistical                     Commission of 30 November 1994 relating to a
     data regarding Benelux on erroneous findings,                            proceeding under Article 85 of the EC Treaty ( Cases
                                                                              IV/33.126 and 33.322 — Cement) (*) or at least annul
                                                                              it in relation to ENCI, on the ground of infringement
— has      not   demonstrated      the    connection    between
                                                                              of essential procedural requirements;
     competitive conduct within the Community and
     cooperation in large-scale exports within the ECEC .
                                                                      B.      alternatively:
                                                                       ( ii ) annul the (contested parts of the ) decision, or at least
The applicant also pleads a lack of reasoning in the                          annul it in relation to ENCI, on the ground that it
contested decision, in that the Commission has failed to                      infringes the law, including Article 85 of the EC
mention the reasons which prompted it to withdraw the                         Treaty, Regulation No 17/62 and/or general legal
'national' objections set out in the statement of                             principles;
objections.
                                                                      C.      in the further alternative:
It also pleads infringement of the procedural rules, and more         (iii) (considerably) reduce the fine imposed on the
particularly of Articles 19 ( 1 ) and Regulation No 17 and                    applicant;
 ---pagebreak--- 22. 4. 95           [IN                   Official Journal of the European Communities                                   No C 101 / 13
D.    costs :                                                        Action brought on 16 February 1995 by Verenigung
                                                                     Nederlandse Cementindustrie against the Commission of
(iv) order the Commission to pay the costs of the action                                  the European Communities
      (including interest on the wrongly paid fine ).                                           (Case T-32/95 )
                                                                                                 ( 95/C 101 /30 )
Pleas in law and main arguments adduced in support:
                                                                                        (Language of the case: Dutch)
— Infringement of essential procedural requirements :
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
    The Commission has infringed the basic rule of                   Instance of the European Communities on 16 February
    (procedural ) competition law, whereby, in a proceeding          1995 by Verenigung Nederlandse Cementindustrie,
    under Article 85 of the EC Treaty, the parties concerned         established at 's-Hertogenbosch, represented by P. A.
    must be given a prior opportunity to comment on the              Wackie Eysten, of the Hague Bar, with an address for service
    objections which the Commission intends to make                  in Luxembourg at the Chambers of L. Frieden, 6 Avenue
    against them, and, more generally, the right to a fair           Guillaume .
    hearing, including the rule laid down by Article 6 of the
    European Convention for the Protection of Human
    Rights ( ECHR). In particular, it has infringed the rights       The applicant claims that the Court should :
    of the defence in that (a ) it allowed the applicant only
    limited access to an incomplete file; ( b ) the objections       A.      primarily:
    communicated by it to the applicant were incomplete
    and fragmentary; (c ) it called upon the applicant to              (i ) annul the (contested parts of the ) Decision of the
    submit a ' defence' against incomplete and fragmentary                   Commission of 30 November 1994 relating to a
    objections; ( d ) it included in the decision fresh                      proceeding under Article 85 of the EC Treaty (cases
    accusations against the applicant which were not                         IV/33.126 and 33.322 — Cement) (*), or at least annul
    levelled as such against the applicant in the statement of               it in relation to VNC, on the ground of infringement of
    objections; and (e ) it imposed on the applicant a                       essential procedural requirements;
    disproportionate fine, without making adequately clear
    in the statement of reasons for the decision which               B.      alternatively:
    specific facts were alleged against it, or at any rate
    imposed a fine which was out of all proportion to the             (ii ) annul the (contested parts of the ) Decision, or at least
    Commission's own finding that the applicant did not                      annul it in relation to VNC, on the ground that it
    participate in agreements implementing the alleged                       infringes the law, including Article 85 of the EC
    Cembureau agreement.                                                     Treaty, Regulation No 17/62 and general legal
                                                                             principles;
— Infringement of one or more higher-ranking rules of law,           C.      in tbe further alternative:
    including Articles 85 ( 1 ) and 190 of the EC Treaty,
    Regulation No 17/62 and/or general legal principles:             (iii ) (considerably) reduce the fine imposed on VNC;
                                                                             and
    The Commission has failed to show that the applicant
    acted contrary to Article 85 of the EC Treaty. More              D.      in any event:
    particularly, it has not demonstrated that the applicant
    'participated' in any agreement between Cembureau                (iv) order the Commission to pay the costs of the action
    members and in any concerted practice between ECEC                       (including interest on the wrongly paid fine ).
    members. That allegation is also incomprehensible —
    and, thus expressed, contrary to Article 190 of the EC           Pleas in law and main arguments adduced in support:
    Treaty — in the light of the finding that the applicant did
    not participate in agreements implementing the alleged           — Infringement of essential procedural requirements
    Cembureau agreement.
                                                                           The Commission has infringed the basic rule of
    The amount of the fine imposed on the applicant was                    (procedural ) competition law, whereby, in a proceeding
    incorrectly determined, or at any rate incompatible with               under Article 85 of the Treaty, the parties concerned
    the law and/or general legal principles, including the                 must be given a prior opportunity to comment on the
    principle of proportionality, and is, at the very least,               objections which the Commission is minded to make
    inadequately reasoned.                                                 against them, and, more generally, the right to a fair
                                                                           hearing, including the rule laid down by Article 6 of the
                                                                           European Convention for the Protection of Human
(!) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                  Rights ( ECHR). In particular, it has infringed the rights
                                                                           of the defence, in that ( a ) it allowed the applicant only
                                                                           limited access to an incomplete and impenetrable file; ( b )
                                                                           the objections communicated by it to the applicant were