CELEX: C1997/318/57
Language: en
Date: 1997-10-18 00:00:00
Title: Action brought on 4 August 1997 by Irish Sugar plc against the Commission of the European Communities (Case T-228/97)

18 . 10 . 97              EN                  Official Journal of the European Communities                                   C 318/29
Instance of the European Communities on 30 July 1997                     Action brought on 4 August 1997 by Irish Sugar pic
by Guerin Automobiles, the principal place of business of                  against the Commission of the European Communities
which is at Alengon (France ), represented by Jean-Claude
                                                                                                  ( Case T-228/97)
Fourgoux, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue                                                ( 97/C 318/57)
Beatrix de Bourbon .
The applicant claims that the Court should:                                               (Language of the case: English)
— declare that the Commission has failed to act,
                                                                         An action against the Commission of the European
— order the Commission to pay the costs.                                 Communities was brought before the Court of First
                                                                         Instance of the European Communities on 4 August 1997
Pleas in law and main arguments adduced in support:                      by Irish Sugar pic, represented by Alexander Bohlke,
                                                                         Rechtsanwalt, and Scott Crosby, Solicitor, with an address
                                                                         for service in Luxembourg at the Elvinger & Dessoy, 31 ,
The applicant states that on 3 August 1992 it submitted a                rue d'Eich, Luxembourg.
complaint to the Commission contesting the compatibility
of the Volvo dealership contract with the competition
rules under the EC Treaty, in particular Commission
                                                                         The applicant claims that the Court should :
Regulation ( EEC ) No 123/85 of 12 December 1984 on the
application of Article 85 ( 3 ) of the EEC Treaty to certain
categories of motor vehicle distribution and servicing
agreements ( ! ). On 5 May 1994, not having succeeded in                 — annul the Commission Decision C ( 97 ) 1315 final,
obtaining from the Commission a response as to the steps
which it intended to take in relation to the complaint, the
applicant brought an action before the Court of First                    — alternatively, reduce the fine imposed in Article 2, and
Instance of the European Communities for a declaration                        annul Article 3 , third and fourth paragraphs, in so far
of failure to act (2 ). During the course of those                            as they go beyond the scope of the abuses found in
proceedings, the Commission sent a notification under                         Article 1 , points 5 and 6 ,
Article 6 of Regulation No 99/63 , informing the applicant
of the reasons for which it did not propose to give
individual consideration to the complaint, in particular the             — order the Commission to pay the costs.
fact that it was then engaged in considering other similar
cases and that it was necessary to await their outcome .
The      Court     of    First   Instance  considered   that   that
notification constituted a definition of position within the             Pleas in law and main arguments adduced in support:
meaning of Article 175 of the EC Treaty and that there
was therefore no need to give a ruling on the application
for a declaration of failure to act. The applicant points out            The contested decision states that the applicant has
that whilst, in the appeal proceedings brought by it                     infringed Article 86 of the EC Treaty by having recourse
against that judgment ( 3 ), the Court of Justice declared               to methods different from those which condition normal
that a notification under Article 6 does not constitute a                competition in products or services based on traders'
measure open to review, it also stated that it is always                 performance, the effect thereof being that the maintenance
open to the complainant undertaking subsequently to                      of the degree of competition still existing in the market
serve formal notice on the Commission calling upon it to                 and the growth of that competition has been hindered. For
adopt a definitive decision .                                            these infringements, also cited in the decision, a fine of
                                                                         ECU 8 800 000 was imposed on the applicant.
In those circumstances, on 2 and 11 April 1997 the
applicant formally called on the Commission to serve a
statement of objections on Volvo .                                       The applicant pleads misapplication of Article 86 of the
                                                                         EC Treaty. It rejects the Commission's views on joint
The applicant considers that it is now entitled, over two                dominance or dominance in the industrial sugar market
months later and five years after submission of the                      and on alleged abuses on the industrial market and the
                                                                         retail market .
original complaint, to bring the present proceedings for a
declaration of failure to act and that it is justified in so
doing.
                                                                         Furthermore, the applicant pleads misapplication of
(') OJL 15 , 18 . 1 . 1985 , p . 16 .                                    Article 15 (2 ) of Regulation No 17. The fine is too high
( 2 ) Case T- 1 86/94, Guérin Automobiles v. Commission [ 1995 ]         and not in line with previous practice . The fine ignores the
      ECR 11-1756 , ( judgment of 27 June 1995 ).                        constraints of the EC sugar regime, treating the applicant
( 3 ) Case C-282/95 P, Guêrin Automobiles v. Commission [ 1997]          worse than it does producers of industrial products. The
      ECR 1-1531 , ( judgment of 18 March 1997 ).                        Commission is not only in breach of its duty to take into
                                                                         account the regulatory and economic context of the
                                                                         practices called in question but also penalizes, in part,
 ---pagebreak--- C 318/30             EN                   Official Journal of the European Communities                                    18 . 10 . 97
infringements not duly found to exist. In the applicant's            applicant, or where there is no national representative
view, the length of the administrative proceeding, which             organization, challenges the Council decision, set out in
could be regarded as a lack of reasonable diligence, should          Regulation ( EC ) No 1188/97, to recognize Italy as a
be considered to be a mitigating factor.                             deficit area and to fix a derived intervention price for
                                                                     white sugar produced in Italy.
Finally, the applicant pleads misapplication of Article 3 ( 1 )
of Regulation No 17 which confers on the Commission                  Owing to the fact that the derived intervention price for
only the power to prohibit abuses found to exist. The                the marketing year 1997/98 should have been fixed before
Commission may order them not to continue, as it does,               1 August 1996 , whereas the contested regulation fixed the
and not to be repeated, as it likewise does . That Article           price on the 25 June 1997, the applicant submits that the
provides no legal basis, however, for prohibiting, by way            said Regulation was adopted with unreasonable delay.
of anticipation, abuses other than the ones formally found.          Sugar manufacturers have the right to be informed in
                                                                     good time of the price at which they may sell to the
                                                                     intervention agencies the sugar produced within the quota
                                                                     and the minimum price to be paid to beet producers .
                                                                     Furthermore, the Council did not state any reasons
Action brought on 5 August 1997 by the Comite                        justifying the decision to regard Italy as a deficit area and,
Europeen des Fabricants de Sucre against the Council of              consequently, the adoption of a derived intervention price .
                    the European Union
                       ( Case T-229/97 )
                                                                     Finally, the applicant claims that the treatment of Italy as
                         ( 97/C 318/58 )                             a deficit area, when it is not, has a negative impact on the
                                                                     European industry and on the common organization of
                                                                     the market in sugar and constitutes a breach of the
               (Language of the case: English)                       principles of non-discrimination and of Community
                                                                     preference .
An action against the Council of the European Union was
brought before the Court of First Instance of the European
Communities on 5 August 1997 by the Comite Europeen
des Fabricants de Sucre, represented by Bernard O'Connor
and Bonifacio Garcia Porras, with an address for service
in Luxembourg at the Chambers of Arsene Kronshagen,
22, Rue Marie Adelaide .                                             Action brought on 5 August 1997 by Comafrica SpA
                                                                     and Dole Fresh Fruit Europe Ltd & Co. against the
                                                                               Commission of the European Communities
The applicant claims that the Court should:                                                  ( Case T-230/97 )
                                                                                               ( 97/C 318/59 )
— pursuant to Articles 173 and 174 of the EC Treaty,
     declare void Article 1 ( f) of Regulation ( EC ) No 1188/
     97 of 25 June 1997 in so far as it affects the applicant                         (Language of the case: English)
     and the European sugar manufacturers; alternatively,
     declare the said provision of the regulation void erga
     omnes,
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 5 August 1997
— request the Council to hand over all impugned                       by Comafrica SpA and Dole Fresh Fruit Europe Ltd &c
     documents, information and methods at its disposal               Co ., represented by Bernard O'Connor, assisted by
     for the adoption of the Regulation, with regard to the           Bonifacio Garcia Porras, with an address for service in
     decision to consider Italy a deficit area;                       Luxembourg at the Chambers of Arsene Kronshagen, 22,
                                                                      rue Marie Adelaide .
 — make any additional orders which the Court considers
     necessary, and                                                   The applicants claim that the Court should :
 — order the Council to pay the costs of the proceedings .            — pursuant to Articles 173 and 174 EC, declare void
                                                                           Commission Regulation ( EC ) No 1155/97 in so far as
 Pleas in law and main arguments adduced in support:                       it affects the applicants, or, in the alternative declare
                                                                           the said Regulation void erga omnes, on the basis that
                                                                           the Commission has acted in breach of Article 40 ( 3 )
 The applicant, an international association made up of                    of the EC Treaty and contrary to the case-law of the
 national organizations of sugar manufacturers, as well as                 Court of Justice and denied the applicants their
 individual sugar companies, where their national                          fundamental rights to property and to pursue a
 representative organization is not a member of the                        professional trade or activity,