CELEX: C1998/299/35
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 29 July 1998 by SCA Holding Ltd against the judgment delivered on 14 May 1998 by the Third Chamber, extended composition, of the Court of First Instance of the European Communities in Case T-327/94 between SCA Holding Ltd and the Commission of the European Communities (Case C-297/98 P)

C 299/22               EN                 Official Journal of the European Communities                                   26.9.98
Communities, represented by Christina Tufvesson, Legal               Appeal brought on 29 July 1998 by SCA Holding Ltd
Adviser, and Bernard Mongin, of its Legal Service, acting            against the judgment delivered on 14 May 1998 by the
as Agents, with an address for service in Luxembourg at              Third Chamber, extended composition, of the Court of
the office of Carlos Gómez de la Cruz, Wagner Centre,                First Instance of the European Communities in Case
Kirchberg.                                                           T-327/94 (1) between SCA Holding Ltd and the
                                                                              Commission of the European Communities
The Commission of the European Communities claims                                          (Case C-297/98 P)
that the Court should:
                                                                                             (98/C 299/35)
Ð declare that, by maintaining in force Articles L 310-8
    and A 310-1 of the Code des Assurances (Insurance                An appeal against the judgment delivered on 14 May
    Code), according to which:                                       1998 by the Third Chamber, extended composition, of the
                                                                     Court of First Instance of the European Communities in
    (a) insurance and capitalisation undertakings are
                                                                     Case T-327/94 between SCA Holding Ltd and the
           required, when marketing a standard form
                                                                     Commission of the European Communities, was brought
           insurance contract for the first time in France, to
                                                                     before the Court of Justice of the European Communities
           notify it to the Minister responsible for economic
                                                                     on 29 July 1998 by SCA Holding Ltd, whose registered
           and financial affairs in accordance with the
                                                                     office is at SCA Packaging House, 543 New Hythe Lane,
           conditions laid down by order issued by that
                                                                     Larkfield, Aylesford, Kent ME20 7PE, United Kingdom,
           Minister;
                                                                     represented by John Pheasant and Nicholas Bromfield,
    (b) the information referred to in the first paragraph           solicitors of the Supreme Court of England and Wales, of
           of Article L 310-8 is to take the form of a note          Lovell White Durrant, with an address for service in
           drawn up in the French language containing the            Luxembourg at the Chambers of Loesch & Wolter, 11, rue
           information mentioned in the Annex to that                Goethe.
           Article,
                                                                     The appellant claims that the Court should:
    the French Republic has failed to fulfil its obligations
    under the Treaty establishing the European                       (a) set aside the judgment of the Court of First Instance
    Community, under Articles 6(3), 29 and 39 of Council                   of the European Communities in Case T-327/94, SCA
    Directive 92/49/EEC of 18 June 1992 on the                             Holding Ltd v. Commission of the European
    coordination of laws, regulations and administrative                   Communities, of 14 May 1998;
    provisions relating to direct insurance other than life
    assurance and amending Directives 73/239/EEC and
    88/357/EEC (third non-life insurance Directive) (1) and          (b) annul Article 1 of Commission Decision 94/601/EC
    under Articles 5(3), 29 and 39 of Council Directive                    of 13 July 1994, as amended by Commission
    92/96/EEC of 10 November 1992 on the coordination                      Decision C(94) 2135 of 26 July 1994, relating to a
    of laws, regulations and administrative provisions                     proceeding under Article 85 of the EC Treaty (IV/C/
    relating to direct life assurance and amending                         33.833 Ð Cartonboard) (2), in so far as it concerns
    Directives 79/267/EEC and 90/619/EEC (third life                       the appellant, or, in the alternative, annul or
    assurance Directive) (2),                                              substantially reduce the fine imposed on the appellant
                                                                           at Article 3 thereof;
Ð order the French Republic to pay the costs.
                                                                     (c)   order that the Commission should bear the costs.
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The Commission considers that the provisions of Articles
L 310-8 and A 310-1 of the French Insurance Code are
                                                                     The legal pleas of SCA Holding Ltd fall into two
not in accordance with the obligations imposed on the
                                                                     categories, those which relate to the issue of the proper
Member States by the third life assurance and non-life
                                                                     addressee of the Cartonboard Decision and those which
assurance Directives, in that they require the systematic
                                                                     relate to the fines imposed.
notification of the general conditions of contracts which
insurance undertakings wish to market for the first time
on French territory. That practice is tantamount to a                Addressee of the Decision:
hidden regime of systematic control. French law does not
require the prior approval of general and special policy             The Court of First Instance's findings on this question
conditions, of scales of premiums or of forms, but it does           raise the following issues of law:
provide for the systematic notification of general
conditions      governing      contracts   which     insurance       (a) whether the Court of First Instance was right to
undertakings wish to market for the first time on French                   conclude that no question of succession arose in the
territory.                                                                 circumstances of this case,
(1) OJ L 228, 11.8.1992, p. 1.
(2) OJ L 360, 9.12.1992, p. 1.                                       (b) whether the Court of First Instance was right to
                                                                           consider that the Commission had a choice of
                                                                           addressee, and, if so
 ---pagebreak--- 26.9.98               EN                Official Journal of the European Communities                                         C 299/23
(c)  whether the Court of First Instance was right to              (c)  even if the Court of First Instance was right to hold
     conclude that, in exercise of that choice, the                     that the Commission had a choice as to whether to
     Commission was entitled to address the Cartonboard                 address the Cartonboard Decision to SCA Holding
     Decision to SCA Holding Ltd.                                       Ltd (or to another legal entity), it was wrong not to
                                                                        take the existence of this choice into account in
                                                                        reviewing the level of fines imposed on SCA Holding
In summary, SCA Holding Ltd's position on these issues is               Ltd. To make SCA Holding Ltd exclusively
as follows:                                                             responsible for the infringement when the
                                                                        Cartonboard Decision could also have been addressed
                                                                        to, and fines imposed (in whole or in part) on, legal
(a) an issue of succession arises in circumstances where                entities belonging to other corporate groups was
     an infringement is committed by an undertaking                     unfair, disproportionate and did not serve to achieve
     which, notwithstanding one or more changes of                      any deterrent effect.
     ownership during or after the period of infringement,
     maintains functional and economic continuity
     throughout the period of infringement and up until            (1) OJ C 386, 31.12.1994, p. 15.
     the date of the Decision, continues to exist in its           (2) OJ L 243, 19.9.1994, p. 1.
     essential form at the date of the Decision and has            (3) Official Journal, English Special Edition, 1962, p. 87.
     legal personality at the date of the Decision. The
     Court of First Instance's finding that there was no
     issue of succession in this case is based on deficient
     reasoning and is contrary to legal principle and the
     jurisprudence of the European Courts;
(b) The Court of First Instance erred in law in                    Appeal brought on 29 July 1998 by Metsä-Serla Sales OY
     concluding that the Commission was entitled to                (formerly Finnish Board Mills Association Ð Finnboard)
     choose, as between entities belonging to different            against the judgment delivered on 14 May 1998 by the
     corporate groups, which entity should be the                  Third Chamber (extended composition) of the Court of
     addressee of the Cartonboard Decision;                        First Instance of the European Communities in Case
                                                                   T-338/94 Finnish Board Mills Association Ð Finnboard
                                                                       and the Commission of the European Communities
(c)  the Court of First Instance's consideration of the
                                                                                           (Case C-298/98 P)
     question whether the Commission exercised that
     choice correctly was inadequate. Even if (which is                                       (98/C 299/36)
     denied) the Commission was entitled to choose which
     entity from different corporate groups to make the
     addressee of the Cartonboard Decision, the Court of
     First Instance erred in law in finding that the               An appeal against the judgment delivered on 14 May
     Commission's choice could not validly be called into          1998 by the Third Chamber (extended composition) of the
     question.                                                     Court of First Instance of the European Communities in
                                                                   Case T-338/94 between Finnish Board Mills Association
                                                                   Ð Finnboard and the Commission of the European
Fines:                                                             Communities was brought before the Court of Justice of
                                                                   the European Communities on 29 July 1998 by Metsä-
                                                                   Serla Sales OY (formerly Finnish Board Mills Association
If the Court considers that the Court of First Instance did
                                                                   Ð Finnboard), represented by Hans Hellmann, Am
not err in holding that SCA Holding Ltd was the correct
                                                                   Morsdorfer Hof 16, D-50933 Cologne, and Hans-Joachim
(or a correct) address of the Cartonboard Decision, SCA
                                                                   Hellmann LL.M., Schilling, Zutt & Anschütz, Otto-Beck-
Holding Ltd submits that the Court of First Instance erred
                                                                   Straûe 42, D-68165 Mannheim, Rechtsanwälte, with an
in the application of its unlimited jurisdiction to review
                                                                   address for service in Luxembourg at the Chambers of
the fine imposed on it by the Commission, contrary to
                                                                   Loesch & Wolter, 11 Rue Goethe, B.P. 1107, L-1011
Article 172 of the Treaty and Article 17 of Council
                                                                   Luxembourg.
Regulation No 17 (3). SCA Holding Ltd makes three pleas
in this part of its appeal:
                                                                   The appellant claims that the Court should:
(a) the Court of First Instance erred in law in finding
     that the position adopted by SCA Holding Ltd during
     the Commission's administrative procedure did not
     justify a reduction of the fine imposed on it;                1. Set aside the judgment of the Court of First Instance
                                                                       of 14 May 1998 in Case T-338/94 Finnboard v.
                                                                       Commission, save and except paragraph 1 of the
(b) the Court of First Instance erred in law in finding                operative part thereof allowing the application in
     that the defective reasoning of the Decision in                   regard to the declaration of nullity of Article 2(1) to
     relation to the fines imposed did not justify the                 (4) of the Decision, and give final judgment in the case
     annulment or reduction of SCA Holding Ltd's fine;                 as follows.