CELEX: C1995/189/14
Language: en
Date: 1995-07-22 00:00:00
Title: Appeal brought on 27 April 1995 by Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid (SPO) and 28 others against the judgment delivered on 21 February 1995 by the Court of First Instance of the European Communities in Case T-29/92 between Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid (SPO) and 28 others and the Commission of the European Communities (Case C-137/95 P)

22 . 7. 95                EN                 Official Journal of the European Communities                                     No C 189/7
— Question 3 :                                                           Appeal brought on 27 April 1995 by Vereniging
                                                                         van Samenwerkende Prijsregelende Organisaties in de
       If questions 1 and 2a to 2d are answered to the effect that       Bouwnijverheid ( SPO ) and 28 others against the judgment
       set-off is in general possible, or possible subject to            delivered on 21 February 1995 by the Court of First Instance
       certain conditions , is Article 15 ( 3 ) of Council               of the European Communities in Case T-29/92 between
       Regulation ( EEC ) No 1765/92 of 30 June 1992                     Vereniging van Samenwerkende Prijsregelende Organisaties
       establishing a support system for producers of certain            in de Bouwnijverheid ( SPO ) and 28 others and the
       arable crops (*) to be interpreted as meaning that a                        Commission of the European Communities
       Member State is precluded from requiring a national                                        Case C-137/95 P )
       intervention agency to effect set-off in the case of a
       beneficiary of compensatory payments with outstanding                                        ( 95/C 189/14
       debts to the State which could otherwise be involved in
       set-off ?                                                         An appeal against the judgment delivered on 21 February
                                                                         1 995 by the Court of First Instance of the European
                                                                         Communities in Case T-29/92 between Vereniging van
— Question 4 :
                                                                         Samenwerkende Prijsregelende Organisaties in de
       Is Article 10 ( 1 ) of Regulation ( EEC ) No 1765/92 to be        Bouwnijverheid ( SPO ) and 28 others and the Commission
       interpreted as meaning that the sums of compensation              of the European Communities was brought before the
       in question are to be paid over immediately the                   Court of Justice of the European Communities on 27 April
       intervention agency has concluded the procedure                   1995 by Vereniging van Samenwerkende Prijsregelende
       with regard to the beneficiary's application, or is it            Organisaties in de Bouwnijverheid ( SPO ) and 28 others ,
       permissible to delay the payment for an investigation as          represented by L. H. van Lennep, of The Hague Bar, and
       to whether the State has outstanding claims against the           E. H. Pijnacker Hordijk, of the Amsterdam Bar, with an
       beneficiary in respect of which it wishes to effect a             address for service in Luxembourg at the Chambers of L.
       set-off, provided always that the payment is effected at          Frieden, 62 Avenue Guillaume .
       the latest by 31 December of the relevant support                 The appellants claim that the Court should :
       year ?
                                                                         — set aside the judgment of the Court of First Instance of
 f 1 ) OJ No L 181 , 1 . 7 . 1992 , p . 12 .                                 the European Communities of 21 February 1995 in Case
                                                                             T-29/92 ( l ),
                                                                         — annul, wholly or at least in part, Commission Decision
                                                                             92/204/EEC of 5 February 1992 relating to a proceeding
                                                                             pursuant to Article 85 of the EC Treaty ( IV/31.572 and
Reference for a preliminary ruling from the Cour de                          32.571 — Building and construction industry in the
Cassation Française ( Chambre Sociale ) by judgment of                       Netherlands ),
28 March 1995 in the case of Caisse Nationale d'Assurance
Vieillesse des Travailleurs Salariés ( CNAVTS ) v. Evelyne              — order the Commission to pay the costs of the
                                 Thibault                                    proceedings before the Court of First Instance and of
                            ( Case C-136/95 )
                                                                             the appeal .
                               95/C 189/ 13 )                            Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the
                                                                        — Infringement and/or misapplication of Articles 85 ( 3 ),
                                                                             173 and/or 190 of the EC Treaty and/or of Article 9 ( 1 )
European Communities by a judgment of the Cour de
                                                                             of Regulation No 17/62 , and in any event of the general
Cassation Française ( Chambre Sociale ) ( French Court of
                                                                             principles of Community law requiring reasons to be
Cassation, Social Affairs Chamber ) of 28 March 1995 ,
                                                                             given for (judicial ) decisions, alternatively of the right to
which was received at the Court Registry on 28 April 1995 ,
                                                                             a fair hearing, in that the Court of First Instance wrongly
for a preliminary ruling in the case of Caisse Nationale                     considered and decided the matters stated and set forth
d'Assurance Vieillesse des Travailleurs Salariés ( CNAVTS )
                                                                             in paragraphs 266 , 267, 286 to 300 inclusive and 310 to
v. Evelyne Thibault on the following question:
                                                                             314 inclusive of its contested judgment, since, in thus
                                                                             considering and ruling on the case in the course of its
Must Articles 1 ( 1 ), 2 ( 1 ), 5 ( 1 ) and, if relevant, 2 (4 ) of          review of the evaluation by the Commission of the
Council Directive 76/207/EEC of 9 February 1976 on the                       appellants ' application for exemption, the Court of First
implementation of the principle of equal treatment for men                   Instance :
and women as regards access to employment, vocational
training and promotion, and working conditions ( ! ) be                      ( a ) limited its review of the legality of the decision of the
interpreted as meaning that a woman may not be deprived                            Commission to the Commission's appraisal of the
of the right to an assessment of performance, and                                  rules in the light of the second and third conditions
consequently to the possibility of an advancement in career,                       of exemption contained in Article 85 ( 3 ) of the EC
on the ground that she was absent from work by reason of                           Treaty, without establishing the benefits and
maternity leave ?                                                                  objectives of those rules, and consequently without
                                                                                   determining the relevant facts needing to be
H OJ No L 39 , 14 . 2 . 1976 , p . 40 .                                            established for the purposes of an assessment in the
                                                                                   light of the second and third conditions contained in
                                                                                   Article 85 ( 3 ) of the EC Treaty;
 ---pagebreak--- No C 189/8             lEN                      Official Journal of the European Communities                                         22 . 7 . 95
   ( b ) ruled that the Commission correctly decided in law                              that the Commission concluded that the former
          that the rules were incapable of allowing consumers                            infringement(s ) had been committed deliberately
          a fair share of the benefits resulting from them,                              or, at the very least, through serious negligence,
          basing that ruling on considerations which are                                 whereas it found that the latter infringement(s ) had
          inherently contradictory and incomprehensible and                              been committed intentionally or at least negligently;
          on the assumption, incompatible with Article 5 ( 3 )                           and/or
          of the EC Treaty, that ( i ) for the purposes of
          assessing the competition rules in the light of the                     (c ) held, contrary to the relevant facts and matters
          second condition laid down in Article 85 ( 3 ),                                established by it and the provisions of Article 4 ( 2 )
          macroeconomic benefits are of no relevance, and/or                             of Regulation No 17/62, that the applicants could
          (ii ) that the second condition in Article 85 ( 3 ) can be                     have had no doubt in the circumstances that their
          regarded as satisfied only where the benefits under                            rules fell within the scope of Article 85 ( 1 ) of the
          consideration accrue without distinction to all                                Treaty, and that the relatively benevolent attitude of
          consumers ;                                                                    the Netherlands authorities regarding the rules
                                                                                         should have encouraged the applicants to notify the
                                                                                         rules to the Commission with a view to obtaining an
   (c ) ruled that the restrictions on competition resulting                             exemption .
          from the rules are not indispensable to the
          attainment of the objectives pursued by those rules,
          thereby substituting its own assessment of the rules             (!) OJ No C 87, 8 . 4 . 1995 , p . 8 .
          in the light of Article 8 5 ( 3 ) of the EC Treaty for that
          of the Commission, contrary to Article 173 of
          the EC Treaty and Article 9 ( 1 ) of Regulation
          No 17/62 .
— Infringement and/or misapplication of Community law,                     Appeal brought on 2 May 1995 by Campo Ebro Industrial
   particularly Article 85 of the EC Treaty, Articles 4                    SA, Levantina Agricola Industrial SA, and Cerestar Iberica
   and/or 15 of Regulation No 17/62 and/or Article 190 of                  SA, against the judgment delivered on 21 February 1995 by
   the EC Treaty, and in any event of the general principles               the First Chamber of the Court of First Instance of the
   of Community law concerning the giving of reasons for                   European Communities in Case T-472/93 between Campo
    (judicial) decisions, legal certainty and legal protection             Ebro Industrial SA, Levantina Agricola Industrial SA, and
   and/or proportionality, in that, in rejecting the                       Cerestar Iberica SA, and the Council of the European
   applicants' plea as to the absence of any element of                    Union, supported by the Commission of the European
   intention or negligence in the infringements found by                                           Communities , intervener
   the Commission to have been committed by the                                                       ( Case C-138/95 P)
   undertakings concerned and as to the disproportionality
   of the fine imposed in that regard, the Court of First                                                ( 95/C 189/15 )
   Instance wrongly considered and decided the matters
   stated and set forth in paragraphs 346 to 388 inclusive of              An appeal against the judgment delivered on 21 February
   its contested judgment, since, in thus considering and                  1995 by the First Chamber of the Court of First Instance of
   ruling on the determination by the Commission of the                    the European Communities in Case T-472/93 between
   gravity of the infringements established by it, within the              Campo Ebro Industrial SA, Levantina Agricola Industrial
   meaning of Article 15 ( 2 ) of Regulation No 17/62, the                 SA, and Cerestar Iberica SA, and the Council of the
   Court of First Instance :
                                                                           European Union, supported by the Commission of the
                                                                           European Communities, intervener, was brought before the
    (a ) failed to verify the extent to which the Commission               Court of Justice of the European Communities on 2 May
          decided      in   each  instance       that   a  deliberate      1995 by Campo Ebro Industrial SA, Levantina Agricola
          infringement, alternatively a (culpably ) negligent              Industrial SA, and Cerestar Iberica SA, represented by Paul
          contravention, had been committed, and thus                      Glazener, of the Rotterdam Bar, with an address for service
          ignored the fact that, as is apparent from                       in Luxembourg at the Chambers of Me Carlos Zeyen, 67
                                                                           Rue Ermesinde .
          Article 15 ( 2 ) of Regulation No 17/62, the
          difference between intentional and negligent acts is
          a decisive factor for the purposes of determining the            The appellants claim that the Court should:
          gravity of the breach and thus fixing the amount of
          the fine(s ) to be imposed on the undertaking(s )
          concerned; and/or                                                  ( i ) annul the judgment of the Court of First Instance, in so
                                                                                     far as the Court of First Instance rejected the claim for
                                                                                     damages; and
    ( b ) disregarded the fact that the Commission drew a
           distinction in that regard between one or more                   (ii ) order the Community to make good the damage
          infringements of the UPR rules and one or                                  suffered by the applicants as a result of Regulation
           more infringements committed over a period                                 ( EEC ) No 3814/92 of 28 December 1992 (*) and to
          going back at least to 1 October 1980, and                                 assess the damages at ECU 3 444 403 for Campo