CELEX: C1995/137/60
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 23 February 1995 by CIMPOR - Cimentos de Portugal SA against the Commission of the European Communities (Case T-61/95)

No C 137/24            EN                   Official Journal of the European Communities                                         3 . 6 . 95
The applicant claims that the Court should :                           The applicant claims that the Court should :
— annul        Commission          Decision    94/815/EC      of       — annul the Commission decision of 30 November 1994
    30 November 1994 ( l ) wholly or alternatively in part in               ( IV/33.126 and 33.322 — Cement) in its entirety so far
    so far as it relates to the applicant,                                  as it concerns the applicant, and consequently annul the
                                                                            fine imposed on the applicant,
— cancel, or alternatively reduce , the fine imposed by
    Article 9 , and                                                    — reduce the fine imposed on CIMPOR, should it decide
                                                                           that it is inappropriate to annul the Commission
— award to the applicant the costs of the application .                    decision in its entirety so far as it concerns the
                                                                           applicant,
Pleas in law and main arguments adduced in support:
                                                                       — order the Commission to pay the whole of the costs .
The Castle submits that the Decision is based upon an
erroneous theory of a ' single and continuous agreement'
which enables the Commission to sew together distinct                  Pleas in law and main arguments adduced in support:
infringements covering different cement associations and
undertakings, different time periods, different markets and            The applicant claims that the legality of the contested
Member States and having different characteristics and                 decision is vitiated by the following defects :
which has led the Commission into a number of manifest
errors of reasoning, inference , and procedure with respect to          I. Defects relating to infringement of the rights of the
proof and economic analysis and to disregard the customary                     defence, arising from :
procedural protection recognized under Community law for
undertakings accused of infringing Article 85 .                                1 . partial notification      of   the    statement       of
                                                                                   objections;
The Commission 's theory has also led it to impose a fine on
Castle which is wholly disproportionate to its role and
responsibility.                                                               2 . general and non-specific nature of the charges ;
Castle contests that there was a Cembureau Agreement as                        3 . limited access to the documents collected by the
alleged by the Commission and denies any participation in                          Commission or used by it in the preliminary
any form of collusion between the UK producers ( Blue                              procedure and in the grounds of its decision;
Circle, Castle and Rugby ) and that its participation to the
European Export Committee was motivated by any                                4 . failure in those parts of the statement of objections
anti-competitive intent or did produce such effects .                              directed against the applicant to identify the
                                                                                   documents      on which the     final decision was
(M OJ No L 343 , 30 . 12 . 1994 .                                                  based;
                                                                              5 . unjustified restriction of the right to a fair hearing,
                                                                                   as a result of the manner in which the hearing of the
                                                                                   parties concerned was organized;
                                                                              6 . use of incomplete documentation as evidence of the
Action brought on 23 February 1995 by CIMPOR —                                     infringements with which the applicant is
Cimentos de Portugal SA against the Commission of the                              charged ;
                    European Communities
                         ( Case T-61/95 )
                                                                              7. impairment of the right to reply orally and in
                           ( 95/C 137/60 )                                         writing and confusion in the administrative
                                                                                   procedure between the preliminary examination
            (Language of the Case: Portuguese)                                     and the statement of their case by the parties .
                                                                       II . Defects relating to the classification of, and evidence
An action against the Commission of the European                              for, the infringements with which the applicant is
Communities was brought before the Court of First                             charged , arising from:
Instance of the European Communities on 23 February
1995 by CIMPOR — Cimentos de Portugal SA, whose
registered office is at 35 Rua Alexandre Herculano, Lisbon,                    1 . breach of Article 85 of the EC Treaty, as a result of
represented by Carlos Botelho Moniz, Adelino Duarte,                               the threefold charge in respect of the same
Teresa Mendes and Amadeu Brandao Cola^o, all members                               infringement;
of the Portuguese Bar, whose Chambers are at 63/6 Rua
Castilho , 1250 Lisbon, with an address for service in                        2 . an error in the grounds of the decision, as a result of
Luxembourg at the Chambers of Aloyse May, 31                                       the inadequate definition and classification of the
Grand-Rue .                                                                        market;
 ---pagebreak--- 3 . 6 . 95             I EN I                 Official Journal of the European Communities                                No C 137/25
        3 . an error in the grounds of the decision, as a result of            3.   limited access to the documents on which the
             the inadequate assessment of the economic criteria                     charge is based ;
             underlying the applicant's beaviour on the
             market;                                                           4 . use of a language other than Portuguese;
        4 . inadequacy and erroneous assessment of the                         5 . inadequacy of the period for replying to the
             evidence on which the Commission's decision is
                                                                                    statement of objections and disruption of the
             based ,   as    regards    the   applicant's   alleged                 normal exercise of the right to a fair hearing;
             participation in both the ' Cembureau Agreement'
             and the 'Iberian agreement'.
                                                                               6 . impairment of the right to reply orally and in
III . Defects relating to the fixing of the penalty imposed on                      writing and confusion in the administrative
        the applicant, arising from :                                               procedure between the preliminary examination
                                                                                    and the statement of their case by the parties .
         1 . breach of the principle of equal treatment;
                                                                          II . Breach of the rules on the statement of reasons, on
         2 . breach of the principle of proportionality.                       evidence and on the adequacy of the evidence on which
                                                                               the decision is based, arising from:
                                                                               1 . contradictory grounds for the decision;
                                                                               2.   use of documents not made available to the
Action brought on 23 February 1995 by SECIL —                                       applicant;
Companhia Geral de Cal e Cimento SA against the
            Commission of the European Communities                             3 . lack of correspondence between the documents on
                           ( Case T-62/95 )                                         which the statement of objections is based and
                             ( 95 /C 137/61 )                                       those on which the decision is based ;
                (Language of the case: Portuguese)                             4 . erroneous assessment of the evidence;
An action against the Commission of the European                               5 . inadequacy and inconsistency of the evidence on
                                                                                    which the Commission 's decision is based .
Communities was brought before the Court of First
Instance of the European Communities on 23 February
1995 by SECIL — Companhia Geral de Cal e Cimento SA,                     III. Erroneous classification of the facts for legal purposes
whose registered office is at Outao, Concelho de Setubal,                      in the light of Article 85 of the EC Treaty, resulting
represented by Nuno Mimoso Ruiz, of the Portuguese Bar,                        in :
whose Chambers are at 63/6 Rua Castilho, 1250 Lisbon,
with an address for service in Luxemboug at the Chambers                       1 . simultaneously charging a European association
of Aloyse May, 31 Grand-Rue .                                                       ( Cembureau ), national associations belonging to
                                                                                    Cembureau ( in the case of Portugal, the ATIC ) and
The applicant claims that the Court should :                                        undertakings belonging to those national
                                                                                    associations ( in the case of ATIC : CIMPOR and
— annul the Commission decision of 30 November 1994                                 SECIL ) with the same infringement; that threefold
      ( IV/33.126 and 33.322 — Cement ) in its entirety so far                      charge in respect of the same infringement is also in
     as it concerns the applicant, and consequently annul the                       breach of Article 85 ( 1 ) of the Treaty;
      fine imposed on the applicant,
                                                                               2 . breach of the principle 'non bis in idem '.
— reduce the fine imposed on SECIL, should it decide that
      it is inappropriate to annul the Commission decision in
     its entirety so far as it concerns the applicant,                   IV. Defects in fixing the amount of the fines , arising
                                                                               from :
— order the Commission to pay the whole of the costs .
                                                                               1 . general infringement of the principles of equal
Pleas in law and main arguments adduced in support:                                 treatment and proportionality;
The applicant relies on the following pleas :                                  2 . erroneous assessment of the subjective and
                                                                                    objective gravity of the infringement;
   I. Infringement of procedural rules and of the rights of
         the defence , arising from :                                          3 . erroneous assessment of the duration of the
                                                                                    infringement.
         1 . partial notification of the charges;
         2 . general and non-specific nature of the charges;