CELEX: C2002/097/29
Language: en
Date: 2002-04-20 00:00:00
Title: Case T-38/02: Action brought on 22 February 2002 by Groupe Danone against the Commission of the European Communities

20.4.2002             EN                    Official Journal of the European Communities                                      C 97/15
In support of its claims, the applicant association puts forward             laws. In that regard, it should be borne in mind that the
the following pleas and arguments:                                           ‘Legge Amato’ had been expressly considered by the
                                                                             defendant on various occasions in connection with
                                                                             Sicilian banks and the Banco di Napoli. In the latter
—    The fiscal measures in favour of mergers between banking                connection, the applicant pleads infringement of the
     institutions are not selective and do not constitute ad hoc             principles of the protection of legitimate expectations,
     aid. It should be borne in mind in that regard that the                 proportionality and legal certainty.
     introduction of fiscal incentives for mergers between
     banking institutions, as provided for under the Italian
     rules since 1990, the primary aim of which is to facilitate
     the privatisation of the sector, is solely intended to
     improve the functioning and flexibility of the tax rules
     with specific reference to the reality of the developments
     taking place in the Italian banking system.
                                                                       Action brought on 22 February 2002 by Groupe Danone
—    The fiscal measures provided for in favour of transfers of          against the Commission of the European Communities
     capital goods and equipment to institutions do not
     constitute aid, inasmuch as they do not involve any
     effective waiver by the State of the collection of tax                                     (Case T-38/02)
     revenues.
                                                                                                (2002/C 97/29)
—    Neither of those types of fiscal measures distorts or
     threatens to distort competition. No preliminary investi-                            (Language of the case: French)
     gation whatever has been carried out by the Commission
     in relation to this point. It must be emphasised in that
     regard that, compared with their competitors in the
     Community, Italian banks are additionally penalised by a          An action against the Commission of the European Communi-
     higher tax burden which cannot easily be reconciled with          ties was brought before the Court of First Instance of the
     the tax regimes applying in other Member States.                  European Communities on 22 February 2002 by Groupe
                                                                       Danone, established in Paris, represented by Antoine Winckler
                                                                       and Marc Waha, lawyers.
—    The fiscal measures adopted in relation to mergers
     between banking institutions do not affect trade between
     Member States.                                                    The applicant claims that the Court should:
                                                                       —     annul the decision in issue, pursuant to Article 230 of
—    No preliminary investigation has been carried out, and                  the EC Treaty;
     no statement of reasons has been given as to why this
     case does not concern de minimis aid.
                                                                       —     alternatively, reduce the fine imposed on the applicant by
                                                                             the decision, pursuant to Article 229 of the EC Treaty;
—    The defendant’s refusal to carry out any specific assess-
     ment of the Italian rules in question meant that it was not       —     order the Commission to pay the costs.
     able to gain a better understanding of the scope and
     content of those rules; this would probably have enabled
     it to ascertain that they complied with Article 87(1) and
     (3) EC and correctly to assess the appropriateness of
     their intended purpose. In actual fact, the Commission            Pleas in law and main arguments
     understood neither the content nor the scope of the
     Italian rules forming the subject-matter of the case.
                                                                       The decision contested in the present case concerns two
                                                                       agreements relating to the Belgian beer market. The first was
—    In the contested decision, the Commission, when asses-            concluded between Interbrew N.V. and Brouwerijen Alken-
     sing the possible incompatibility of certain provisions of        Maes N.V. It included, in particular, a general ‘non-aggression
     the law in question for the purposes of Article 87(1) EC,         pact’, an agreement regarding retail prices and a market-
     wholly failed to take into account the significance, dealt        sharing arrangement in the hotel/restaurant/café sector. The
     with at length in the procedure before the Commission,            Commission has not censured Alken-Maes for having partici-
     of the common validity and continuity of the ‘Legge               pated in that agreement, but only its majority shareholder at
     Amato’ (Law No 218 of 30 July 1990) and the ‘Legge                the time, namely the applicant, on account of its own
     Ciampi’ in the context of the privatisation of the Italian        participation in the agreement and the fact that it formed an
     banking system, which was initiated by the first of those         economic entity with Alken-Maes.
 ---pagebreak--- C 97/16                 EN                    Official Journal of the European Communities                                     20.4.2002
The defendant has also established the existence of a second             Action brought on 25 February 2002 by Jungbunzlauer
agreement, concerning beers sold under distributors’ brand               AG against the Commission of the European Communi-
names, concluded between Interbrew, Alken-Maes, Haacht and                                               ties
Martens, involving market-sharing and collusion in respect of
price-fixing. As regards that second agreement, the contested
decision does not censure the applicant in relation to the acts                                    (Case T-43/02)
of its former subsidiary, since it was not involved therein.
                                                                                                   (2002/C 97/30)
The applicant does not challenge the basic findings underlying
the contested decision. In support of its claims, it puts forward                           (Language of the case: German)
the following pleas in law and main arguments:
—     The Commission has infringed the principles of propor-
      tionality and equal treatment by taking the sum of                 An action against the Commission of the European Communi-
      25 million EUR as the ‘basic amount’ of the fine.                  ties was brought before the Court of First Instance of the
                                                                         European Communities on 25 February 2002 by Jungbunzlau-
                                                                         er AG, of Basle (Switzerland), represented by R. Bechtold,
—     The decision is factually unfounded, inasmuch as it finds          M. Karl and U. Soltész, lawyers.
      that the infringement lasted from 28 January 1993 to
      28 January 1998. In so finding, the Commission applied
      too high a multiplier to the amount of the fine.
                                                                         The applicant claims that the Court should:
—     The decision is factually unfounded in so far as it finds          —     annul the Commission’s decision of 5 December 2001
      that the applicant forced Interbrew to participate in the                (Case COMP/E-1/36.604 — Citric acid);
      agreement.
                                                                         —     alternatively, reduce the fine imposed in Article 3 of the
—     The decision is unfounded in law and in fact, in that there              decision;
      was no justification for increasing the fine on account of
      the fact that the applicant had already been found on two
      earlier occasions to have acted unlawfully. In that regard,        —     order the Commission to pay the costs of the proceedings.
      the Commission has infringed the principles of ‘nulla
      poena sine lege’, ‘ne bis in idem’ and legal certainty.
—     The decision is unfounded in law and in fact, inasmuch
                                                                         Pleas in law and main arguments
      as it reduces the fine by only 10 % on account of
      mitigating circumstances. It omitted to take into account
      the influence of the price control system and the tradition
      of concerted practices in the brewing sector, the fact that        The subject-matter of the dispute is the Commission’s decision
      the agreement had no effect on the market, the dependent           of 5 December 2001 (Case COMP/E-1/36.604 — Citric acid)
      situation of Alken-Maes by comparison with the domi-               in which the Commission found that the applicant and
      nant position occupied by Interbrew, the financial difficul-       four other undertakings had infringed Article 81(1) EC and
      ties facing Alken-Maes and the crisis situation prevailing         Article 53 of the EEA Agreement, in that they had participated
      during the period in question.                                     in a continuing agreement and/or a concerted practice in the
                                                                         citric acid sector. A fine of EUR 17,64 million was imposed on
                                                                         the applicant.
—     The decision is unfounded in law and in fact, inasmuch
      as it finds that the applicant contested the facts alleged
      against it. In that respect, the applicant should have been
      entitled to a substantial reduction in the fine.                   First, the applicant claims that the decision was directed to the
                                                                         wrong addressee. The decision should, in fact, have been
                                                                         directed to Jungbunzlauer Ladenburg GesmbH, an associate
                                                                         company of the applicant.
The applicant company also pleads violation of its rights of
defence and failure on the part of the Commission to comply
with its obligation to provide a statement of reasons.
                                                                         The applicant claims that the Commission did not adequately
                                                                         establish the actual effects on the market and that it refused to
                                                                         take into account, in the applicant’s favour, the fact that
                                                                         Jungbunzlauer Gesmbh played a special role in the cartel.