CELEX: C1995/119/45
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 23 February 1995 by Irish Cement Ltd against the Commission of the European Communities (Case T-60/95)

No C 119/22             EN                  Official Journal of the European Communities                                    13 . 5 . 95
III. As regards the amount of the fine imposed, the                         6. Imposition of fines without prior warning.
      applicant pleads, first, infringement of Article 15 of
      Regulation No 17, alleging that there was a mistake               II. Improper application of Article 85 of the EC Treaty
      both in determining the duration of the matters alleged               through lack of evidence and erroneous assessment of
      and the assessment of the seriousness of its alleged                  the applicable legal concepts, as regards:
      participation; and secondly, breach of the principle of
      fairness .                                                            1 . The analysis of the relevant market;
                                                                            2. The Cembureau Agreement;
                                                                            3 . The agreements concerning the exchange of
                                                                                information on prices;
Action brought on 23 February 1995 by Agrupaciôn de
Fabricantes de Cemento de Espana 'Oficemen' against the                     4. The concerted practices concerning the exchange of
         Commission of the European Communities                                 information on prices;
                          (Case T-59/95 )
                                                                            5 . The Spain-Portugal Agreement;
                           ( 95/C 119/44)
                                                                            6 . The agreement concerning the European Task
                  (Language of the case: Spartish)                              Force;
An action against the Commission of the European                            7. The agreement concerning Interciment;
Communities was brought before the Court of First
Instance on 23 February 1995 by Agrupaciôn de                               8 . The concerted practices ^s regards Calcestruzzi;
Fabricantes de Espana ('Oficemen'), represented by Jaime                    9 . The concerted practices as regards ECEC.
Folguera Crespo and Ramon Vidal Puig, of the Madrid Bar,
with an address for service in Luxembourg at the Chambers              III. Infringement of Article 15 (2 ) of Regulation No 17 on
of Bonn & Schmitt, 62 Avenue Guillaume,                                     the following grounds:
The applicant claims that the Court should:                                 1 . Inadmissibility of imposing general penalties;
— annul           Commission       Decision     94/815/EC        of         2 . Erroneous assessment of the duration of the
    30 November 1984,                                                           infringements;
— in the alternative, annul Articles 1 , 2, 3 (2 ), 4 ( 1 ), 4 (2 ),        3 . Erroneous assessment of the gravity of the
    4 ( 3 ) (a ), 5 and 9 of the aforementioned Decision, in so                 infringements;
    far as those Articles refer to Oficemen,
                                                                            4. Breach of the principle 'non bis in idem'.
— as a subsidiary plea, annul the fine imposed on Oficemen
    in Article 9 of the Decision or reduce the amount of the           IV. Misapplication of Article 1 ( 1 ) ( b) of Regulation (EEC)
    same ,                                                                  No 2988/74: the alleged offences are time-barred.
— order the Commission to pay the costs, expressly
    including the expenses of lodging and maintaining the
    security for the fine.
                                                                       Action brought on 23 February 1995 by Irish Cement Ltd
Pleas in law and main arguments adduced in support:                      against the Commission of the European Communities
The applicant relies upon the following grounds in support                                   (Case T-60/95 )
of its claims :                                                                               ( 95/C 119/45 )
  I. Breach of essential procedural requirements:                                     (Language of the case: English)
      1 . Incomplete notification of the Statement of
            Objections, limited access to the file and exclusion       An action against the Commission of the European
            from the hearings;                                         Communities was brought before the Court of First
                                                                       Instance of the European Communities on 23 February
      2. Inadequate access to the file;                                1995 by Irish Cement Ltd, represented by Mr. John D.
                                                                       Cooke and Mr John Glackin with and address for service in
      3 . Absence of a statement of reasons for the                    Luxembourg at the Chambers of Etude Faltz & associés, 6,
            'abandonment' of national objections;                      rue Heinrich Heine, L-1720 Luxembourg.
      4. Failure to consult the Advisory Committee;                    The applicant claims that the Court should:
      5 . Inconsistency between the objections and the                 — declare under Article 174 that the Commission's
            Decision;                                                      Decision of 30 November 1994 is void,
 ---pagebreak---  13 . 5 . 95          EN                Official Journal of the European Communities                                   No C 119/23
— cancel pursuant to Article 172 and Article 17 of                 The applicant claims that the Court should:
     Regulation No 17/62 or, in the alternative, reduce the
     fine imposed upon the applicant, and .                        — annul or modify the Commission Decision of
                                                                         30 November 1994 ( : ) at least in so far as regards Titan,
— award the applicant costs against the respondent.                      in particular by annulling or reducing the fine imposed
                                                                         upon it,
Pleas in law and main arguments adduced in support:
                                                                   — in any event, order the Commission to pay Titan's costs,
Procedural irregularity:                                                 and
It is submitted that the Decision should be declared void
                                                                   — take such other or further steps as justice may
upon the following grounds of procedural irregularity on                 require.
the part of the Commission:
— witholding of Statement of Objections,                           Pleas in law and main arguments adduced in support:
— failure to deal with reply to Statement of Objections .          The applicant alleges that the Decision is defective owing to
                                                                   infringements of essential procedural requirements and
Substantive grounds:                                               infringements of rules of law relating to the application of
                                                                   the EC Treaty, for the following reasons:
It is submitted that the Decision infringed Articles 190 and
85 of the Treaty and was so manifestly mistaken and                  I. Adequate notice and access to the file:
unfounded as to constitute a misuse of the powers of the
Commission .
                                                                           1 . Failure to give adequate notice of the case against
                                                                               the applicant, in that the Statement of Objections
The Decision was without reasoned foundation; was
                                                                               did not sufficiently particularize how the applicant
manifestly perverse in its assessment of such evidence as the                  was supposed to have participated in the alleged
Commission had before it and was arbitrary and
                                                                               agreement.
unreasonable in disregarding or misrepresenting evidence
adduced on behalf of the applicant.
                                                                           2. Failure to give the applicant access to the entirety of
                                                                               the Commission's file .
The Decision relied entirely upon a principle of 'guilt
by association' and failed completely or at least
disproportionately to attempt to assess the specific situation      II .   Evidence
of individual undertakings.
                                                                           1 . Disregard of the economic and commercial
The Decision failed to make any reasonable attempt to                          evidence, failure to take proper account of the
distinguish the actual responsibility of individual                            evidence offered by the applicant in its defense and
undertakings for involvement in the alleged agreements,                        failure to provide adequate evidence that in either
practices and infringing act.                                                  intentionally or negligently infringed Article 85 ( 1 )
                                                                               of the EC Treaty.
The applicant also submits that the fine should be cancelled
or reduced .
                                                                           2.  Erroneous assessment of evidence in that the
                                                                               Decision contains a number of inconsistencies and
                                                                               discrepancies.
                                                                   III. Reasoning
Action brought on 23 February 1995 by Titan Cement
Company CA against the Commission of the European                          1 . Failure to provide adequate reason to explain why
                         Communities                                           the target of an alleged conspiracy should be
                       (Case T-64/95 )                                         punished by a severe fine in the same way as the
                                                                               alleged initiators of such a conspiracy and,
                        ( 95/C 119/46 )
                                                                               correspondingly, breach of the principles of natural
                                                                               justice, proportionality and equal treatment.
               (Language of the case: English)
                                                                          2. Error of substantive law, by determining the
An action against the Commission of the European                               existence of an infringement on the basis of the
Communities was brought before the Court of First                              applicant's membership of an association which
Instance of the European Communities on 23 February                            was a member of Cembureau, and, in particular, by
1995 by Titan Cement Company CA, represented by Ian S.                         asserting that the applicant bore responsibility for
Forrester QC and Aristotelis N. Kaplanidis, with an address                    the European Task Force 'within the framework of
for service in Luxembourg at the Chambers of Maître Tom                        Cembureau', when this task force was etablished
Loesch, 11 Rue Goethe, 1011 Luxembourg.                                        with the purpose of harassing Greek producers .