CELEX: C2002/109/108
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-33/02: Action brought on 21 February 2002 by Britannia Alloys and Chemicals Limited against the Commission of the European Communities

C 109/56               EN                     Official Journal of the European Communities                                         4.5.2002
The applicant claims that the Court should:                              Pleas in law and main arguments
—     annul the Council’s decision refusing to allow the appli-
      cant access to his medical file;
—     order the Council to pay the costs.
                                                                         The applicant contests the above-mentioned Decision in which
                                                                         the Commission found that the applicant and five other
                                                                         undertakings had infringed the provisions of Article 81(1) of
Pleas in law and main arguments                                          the Treaty and Article 53(1) of the EEA Agreement by
                                                                         participating in continuing agreement and/or concerted prac-
                                                                         tices in the zinc phosphate sector. A fine of EUR 3.37 million
According to the applicant, the documents contained in                   was imposed on the applicant following a reduction of 10 %
an official’s medical file are directly connected with his               of the fine pursuant to Section D(2) of the Leniency Notice.
administrative and legal situation and must therefore be
included in his personal file, whilst observing the guarantees
provided for in Article 26 of the Staff Regulations, in particular
the right of access to those documents. The applicant disputes
the assertion that the possibility of consulting his medical file
through the intermediary of his doctor constitutes adequate              The applicant submits that the Commission infringed
access to the documents or a necessary measure in accordance             Article 15(2) of Regulation No. 17/62 by referring in the
with the principle of medical confidentiality. He maintains that         Decision to the applicant’s turnover for the business year
he must be given the chance to consult in person any                     ending 30 June 1996 when applying the limit fixed at 10 % of
document in his medical file.                                            turnover, instead of referring to its business year preceding the
                                                                         adoption of the Decision, and by thus determining that a fine
                                                                         of EUR 3.75 million did not exceed the upper limit of the fine
                                                                         that could be imposed. By referring to a business year
                                                                         other than the business year preceding the Decision for the
                                                                         mentioned calculation, the Commission departed from its
                                                                         previous practice and thus infringed the general principle of
Action brought on 21 February 2002 by Britannia Alloys                   equal treatment.
and Chemicals Limited against the Commission of the
                    European Communities
                          (Case T-33/02)
                                                                         The applicant alleges that by referring to the last entire year of
                                                                         ‘normal economic activity’ instead of the business year preced-
                        (2002/C 109/108)                                 ing the Decision, the Decision discriminated between undertak-
                                                                         ings in essentially the same situation and thus breached the
                   (Language of the case: English)                       general principle of equal treatment. It also breached the
                                                                         general principle of proportionality by imposing a fine on the
                                                                         applicant which does not reflect the applicant’s financial
                                                                         standing at the time of the Decision.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 21 February 2002 by Britannia
Alloys and Chemicals Limited, represented by Ms Samantha
Mobley and Ms Helen Bardell of Baker & McKenzie, London
(United Kingdom).                                                        Furthermore, the applicant submits that, insofar as the
                                                                         Decision relates to the applicant, the Commission infringed
                                                                         the general principle of legal certainty by referring to a business
The applicant claims that the Court should:                              year other than the financial year preceding the Decision for
                                                                         the purposes of calculating the limit fixed at 10 % of turnover.
—     annul Article 3 of the Commission Decision of 12 Decem-            Such a way of proceeding makes it impossible for undertakings
      ber 2001 relating to a proceeding under Article 81 of the          to predict the way in which penalties might be imposed on
      EC Treaty and Article 53 of the EEA Agreement (Case                them with sufficient certainty. In accordance with the above-
      COMP/E-1/37.027 — Zinc Phosphate) insofar as it                    mentioned principle, Article 15(2) of Regulation No. 17/62
      pertains to the applicant;                                         must be interpreted strictly so that the 10 % limit is always
                                                                         applied to the business year immediately prior to the adoption
—     in the alternative, modify Article 3 of the Decision insofar       of the Decision.
      as it pertains to the applicant, so as to annul or
      substantially reduce the fine imposed on the applicant
      therein; and
—     order the Commission to pay all the costs of the
      proceedings.