CELEX: C2001/161/45
Language: en
Date: 2001-06-02 00:00:00
Title: Case T-57/01: Action brought on 12 March 2001 by Solvay SA against the Commission of the European Communities

2.6.2001                  EN                       Official Journal of the European Communities                                      C 161/21
Pleas in law and main arguments                                               Action brought on 12 March 2001 by Solvay SA against
                                                                                     the Commission of the European Communities
The applicant is a subsidiary of the Japanese company Asahi
Vet Japan Co. Ltd, which developed the feedingstuff additive                                            (Case T-57/01)
ToyoCerin, and is the only manufacturer of that additive in the
world. The applicant produces the additive for the European
market in Spain and distributes it in Europe. In that capacity,                                        (2001/C 161/45)
the applicant is the applicant in a procedure for Community
authorisation in respect of the additive ToyoCerin pursuant to
Articles 3 and following of Council Directive 70/524/EEC (1).                                    (Language of the case: French)
The applicant first applied for a Community authorisation in                  An action against the Commission of the European Communi-
respect of ToyoCerin for all categories of animal in 1991, and                ties was brought before the Court of First Instance on 12 March
a temporary authorisation for ToyoCerin in respect of the                     2001 by Solvay SA, established in Brussels, represented by
following categories of animal was granted in 1994: rearing                   Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
pigs, piglets and sows. That temporary authorisation was                      and Anne Vallery, Lawyers.
periodically extended until April 1999. As regards other
animals, such as fattening chickens, cattle and fattening rabbits,
ToyoCerin was authorised on a temporary basis by Regulation                   The applicant claims that the Court of First Instance should:
(EC) No 1411/1999 (2). The applicant claims that that tempor-
ary authorisation was not extended and that the applicant’s
request for unlimited authorisation of ToyoCerin in respect of                —     find that the action taken against it was time-barred;
rearing pigs, piglets and sows has not been determined.
                                                                              —     in any event, annul the Commission Decision of
                                                                                    13 December 2000 relating to a procedure under
The action is directed against the Commission’s decision to                         Article 82 of the Treaty (COMP/33.133-C: Soda-ash —
dismiss the applicant’s request for unlimited authorisation in                      Solvay);
respect of ToyoCerin for use on swine, and for an extension of
the temporary authorisation in respect of use of ToyoCerin on
other types of animal. The applicant claims that it is entitled               —     find that the power to impose fines is time-barred;
to be awarded the authorisation it is requesting pursuant to
Article 3(a) of Directive 70/524/EEC, and that the Com-                       —     in any event, annul Article 2 of the contested decision, in
mission’s decision not to propose to the Standing Committee                         so far as it imposes a fine of EUR 20 million on the
for Feedingstuffs that such authorisation be granted, and to                        applicant;
dismiss the applicant’s request, infringes that provision.
                                                                              —     declare that no fine should be imposed on the applicant
Furthermore, the applicant has legitimate expectations in the                       or, at the very least, that the fine should be substantially
present case, pursuant to which it was entitled to assume that                      reduced;
ToyoCerin would be granted fresh authorisation for categories
of animal other than swine before the temporary authorisation                 —     order the Commission to pay the costs.
expired. Finally, the procedure followed by the defendant
infringes the provisions relating to the time limits within
which the authorisation procedure is to be carried out and
the defendant’s contested decision infringes the principle of                 Contentions and principal arguments adduced in support
proportionality and the requirement to provide reasons in
Directive 70/524/EEC.
                                                                              The applicant is a company incorporated under Belgian law,
                                                                              which operates in the soda-ash sector through marketing
                                                                              outlets in nine countries in Europe.
(1) Council Directive 70/524/EEC of 23 November 1970 concerning
     additives in feeding stuffs (OJ L 270, p. 1), most recently amended
     by Commission Regulation (EC) No 45/1999 of 11 November
     1999 (OJ L 6, p. 3).                                                     On 19 December 1990, the Commission adopted Decision
                                                                              91/299/EEC (1) finding that the applicant held a dominant
( 2) Commission Regulation (EC) No 1411/1999 of 29 June 1999                  position on the soda-ash market in continental Europe and
     concerning the authorisation of new additives and new additive
     uses in feedingstuffs (OJ L 164, p. 56).
                                                                              had abused that position, and imposed on the applicant a fine
                                                                              of ECU 20 million. An action for the annulment of that initial
                                                                              decision was brought before the Court of First Instance. By
                                                                              judgment of 29 June 1995, the Court of First Instance
                                                                              annulled the decision (2). The Commission’s appeal against that
                                                                              judgment was dismissed by the Court (3).
 ---pagebreak--- C 161/22               EN                    Official Journal of the European Communities                                      2.6.2001
On 13 December 2000, the Commission adopted a decision (4)              As to the substance, the applicant submits that the Commission
finding that the applicant had infringed Article 86 of the EEC          infringed Article 82 EC by the manner in which it defined the
Treaty by acting in a manner intended to exclude or to limit            geographical market without taking account of the real
competition very severely, by, inter alia, concluding agreements        conditions of competition and that the applicant did not hold
with customers requiring them to obtain supplies from the               a dominant position within the meaning of that article on the
applicant. In that decision, the Commission imposed on the              soda-ash market.
applicant a fine of EUR 20 million.
                                                                        As regards the Commission’s view that the applicant resorted
                                                                        to various practices all designed to bring about exclusion, the
                                                                        applicant contends that that view is not supported by the facts
The applicant seeks the annulment of that decision.                     and is wrong in law. Furthermore, the Commission did not
                                                                        give a proper statement of its reasons for its decision.
                                                                        In the alternative, the applicant seeks annulment of the
In support of its application, the applicant claims that the            fines imposed or reduction thereof. It contends that the
Commission did not take account of the passage of time.                 Commission’s power to impose fines on the applicant had
The five-year limitation period, which was suspended while              been extinguished by the time the contested decision was
proceedings for annulment were pending before the Court of              adopted, and therefore the Commission infringed Article 15
First Instance, ended in January 2000. Therefore, in the                of Regulation No 17. Moreover, it did not properly assess the
applicant’s view, the Commission adopted a decision at a time           gravity and duration of the infringement and failed to take
when its power to impose fines had been time-barred for many            account of extenuating circumstances. Finally, the amount of
months. The applicant also considers that the Commission                the fine is excessive and disproportionate and takes no account
infringed the applicant’s right to have a decision against it           of the passage of time.
taken within a reasonable period, in view of the fact that the
conduct imputed to the applicant occurred from 1983 to the
end of 1990.
                                                                        (1) Commission Decision 91/299/EEC of 19.12.1990 (IV/33.133-C:
                                                                            Soda-ash — Solvay), OJ 1991 L 152, p. 21.
                                                                        (2) Case T-32/91 Solvay v Commission [1995] ECR II-1825.
                                                                        (3) Judgment of 6.4.2000 in Joined Cases C-287/95 P and C-288/95
According to the applicant, a decision was adopted before a                 P Commission v Solvay [2000] ECR I-2391.
meeting of the members of the Commission. The applicant                 (4) Commission Decision of 13.12.2000 relating to a procedure
alleges infringement of the principle of collegiality and of the            under Article 82 EC (COMP/33.133-C: Soda-ash — Solvay.
principle of legal certainty.
Moreover, in its view, the contested decision infringed essential
procedural requirements which should have been fulfilled
before its adoption, the applicant’s rights of defence and its
right to be heard. The Commission cannot rely on the
administrative procedure which preceded the adoption of the
decision of December 1990, since that procedure was vitiated            Action brought on 12 March 2001 by Solvay SA against
in numerous ways and the applicant should have been granted                    the Commission of the European Communities
a hearing allowing it to submit its observations.
                                                                                                  (Case T-58/01)
                                                                                                 (2001/C 161/46)
According to the applicant, the Commission did not reopen
the administrative procedure which preceded adoption of
Decision 91/299 and did not receive a fresh statement of
objections and, therefore, was unable to respond to those                                  (Language of the case: French)
objections. By readopting, practically word for word, a decision
dating from 1990, disregarding, amongst things, the passage
of time, the contradictory positions taken by the Commission            An action against the Commission of the European Communi-
on matters essential to appraisal of the case and evidence in           ties was brought before the Court of First Instance on 12 March
defence put forward by the applicant in the intervening                 2001 by Solvay SA, established in Brussels, represented by
period, the Commission infringed the principles of sound                Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
administration, impartial examination and proportionality.              and Anne Vallery, Lawyers.