CELEX: C1995/119/46
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 23 February 1995 by Titan Cement Company CA against the Commission of the European Communities (Case T-64/95)

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 .
 ---pagebreak--- No C 119/24           EN                  Official Journal of the European Communities                                    13 . 5 . 95
IV.  Fines                                                           — annul the Commission's Decision of 23 September 1993
                                                                         (mentioned in the Commission's letter of 27 September
     1 . Failure to provide adequate reasons to explain why              1993 ), where it provides for the closure of the
         the applicant should be fined .                                 international part of the proceeding in relation to the
                                                                         12 German undertakings and six Spanish undertakings
     2. Breach of the principle of natural justice and of                therein specified,
         Regulation No 17/62, by imposing a huge fine on
         the applicant, without adequately establishing any          — order the Commission to pay the costs.
         fault on the part of the company.
                                                                     Pleas in law and main arguments adduced in support:
     3 . Breach of the principles of proportionality, natural        The action is based on the following grounds :
         justice and equal treatment.
                                                                       I. Infringement of procedural rules
 V. Duration
                                                                           1 . Infringement of the rights of the defence :
     1 . Manifest error of assessment in holding that the                      The applicant argues that the Commission has
         applicant was party for 11 years to a 'single and                     infringed a number of fundamental rights of the
         continuous agreement' with other producers, when                      defence, particularly the right to be heard and the
         the Decision itself alleges that other producers had                  right of access to the file .
         reached agreement among themselves to take
         various actions against the applicant during that                 2. Breach of the principle of the protection of
         period.                                                               legitimate expectations and the principle of
                                                                               non-discrimination. Inconsistency with a previous
     2 . Incorrect determination of the duration of the                        decision .
         alleged infringement, without regard to the                       3 . The formulation of new objections in the
         statistical, commercial and technical evidence                        Decision .
         indicating that the applicant at least was not party
         to any infringement during the relevant period.                  4. Non-observance of the time limits applicable to the
                                                                               Commission's action .
(M Cases IV/33.126 and 33.322 — Cement.
                                                                           5 . Defective adoption/authentication of the decision.
                                                                      II. Misapplication of Article 85 of the Treaty. The
                                                                          applicant argues that the accusations against it are
                                                                           unfounded, and that the Commission has misapplied
                                                                           Community law, especially Article 85 of the Treaty; its
Action brought on 23 February 1995 by Italcementi SpA                     position is based on the following grounds:
  against the Commission of the European Communities
                       (Case T-65/95 )                                     1 . The relevant geographical market was erroneously
                                                                               defined .
                        ( 95/C 119/47)
                                                                           2. Article 85 did not apply in the absence of a
                (Language of the case: Italian                                 competitive situation.
                                                                           3 . There was no           'single    and    continuous
An action against the Commission of the European                               infringement'.
Communities was brought before the Court of First
Instance of the European Communities on 23 February                       4. The conduct of the applicant in relation to:
1995 by Italcementi SpA, whose registered office is in                         ( a ) the 'Cembureau' agreement;
Bergamo (Italy), represented by André Faures of the Brussels
Bar, Cesare Lanciani of the Milan Bar, Albertu Predieri of                     ( b ) the 'European Task Force';
the Florence Bar, Mario Siragusa of the Rome Bar,
Francesca Moretti of the Bologna Bar, and Giulio Rizza of                      (c) the 'European Cement Export Committee';
                                                                                     and
the Siracuse Bar, with an address for service in Luxembourg
at the Chambers of Elvinger, Hoss and Prussen, 15, Côte                        (d ) the 'White Cement Committee';
d'Eich, Luxembourg.
                                                                               could not be regarded as infringing Article 85 of the
The applicant claims that the Court should:                                    Treaty.
                                                                     III. Infringement of Article 190 of the Treaty. The
— annul in whole or in part Commission Decision                           applicant argues that the Commission has seriously
    94/815/EC of 30 November 1994 relating to a                           infringed Article 190 of the Treaty, in particular
    proceeding under Article 85 of the EC Treaty ( Cases                  because :
    IV/33.126 and 33.322 ) ( x ), in so far as it concerns the
    applicant,                                                             1 , the Decision of 30 November 1994 is vitiated both
                                                                               by inconsistency between the statement of reasons
— in the alternative, annul or reduce the fines imposed                        and the operative part and by an insufficient
    upon the applicant,                                                        statement of reasons; and