CELEX: C1995/333/38
Language: en
Date: 1995-12-09 00:00:00
Title: Action brought on 10 October 1995 by Société de Distribution Mécanique et d'Automobiles (Sodima) against the Commission of the European Communities (Case T-190/95)

No C 333/20            EN                 Official Journal of the European Communities                                     9 . 12 . 95
Instance of the European Communities on 9 October 19 95              Action brought on 10 October 1995 by Société de
by Service pour le Groupement d'Acquisitions ( SGA ),                Distribution Mécanique et d'Automobiles ( Sodima ) against
established at Istres ( France ), represented by Jean-Claude               the Commission of the European Communities
Fourgoux, of the Paris Bar, with an address for service in                                  ( Case T- 190/95 )
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue
Beatrix de Bourbon .                                                                          ( 95/C 333/38 )
                                                                                    (Language of the case: French)
The applicant claims that the Court should :
— declare that the Commission has wrongfully failed to               An action against the Commission of the European
     act ,                                                           Communities was brought before the Court of First
                                                                     Instance of the European Communities on 10 October 1995
— annul the implicit decision not to act upon the request            by Societe de Distribution Mecanique et d'Automobiles
     for provisional measures ,                                      ( Sodima ), established at Istres ( France ), represented by
                                                                    Jean-Claude Fourgoux, of the Paris Bar, with an address for
— declare      that  the   Commission     has   incurred  non­       service in Luxembourg at the Chambers of Pierrot Schiltz,
     contractual liability and award the applicant the sum of        4 Rue Beatrix de Bourbon .
     ECU 200 000 ,
                                                                     The applicant claims that the Court should :
— order the Commission to pay the costs .
                                                                     — declare that the Commission has wrongfully failed to
Pleas in law and main arguments:                                         act ,
The applicant states that it operates as an intermediary in the      — annul the implicit decision refusing to communicate
distribution of all makes of automobiles, undertaking                    documents to it,
parallel imports as agent for the final consumer, in
accordance with the provisions of Article 3 ( 11 ) of               — annul the implicit decision to deal with matters
Regulation ( EEC ) No 123/85 , as referred to in Regulation              jointly,
( EEC ) No 1475/95 . On 24 June 1994 it lodged with the             — declare       that     the    Commission       has    incurred
Commission a complaint on the basis of Article 85 of the EC              non-contractual liability and order it to pay
Treaty and Regulations ( EEC ) No 17 and ( EEC ) No 123/85 ,             compensation for the damage suffered up to the sum of
criticizing the steps taken by the PSA group in relation to the          ECU 200 000 per year from 14 March 1995 ,
Peugeot and Citroen dealers representing its foreign
subsidiaries to prevent them from agreeing to sell vehicles to      — order the Commission to pay the costs .
French intermediaries . On 24 April 1995 , having received
no satisfactory response from the Commission, the                    Pleas in law and main arguments:
applicant was forced to call upon it to act, in accordance
with the provisions of Article 175 of the Treaty .                   The applicant company, a Peugeot concessionaire, contests
                                                                     the Commission's refusal to act on a complaint lodged by it
The applicant considers that the Commission has failed in            against PSA concerning the infringement, in the drafting of
the present case to comply with the guarantees provided for          its dealership agreement and the use made thereof, of
by the Community legal order in administrative procedures,           Article 85 of the EC Treaty and Regulation ( EEC )
including in particular the obligation incumbent on the              No 123/85 . It further complains, first, of the failure by
institution to carry out a careful and impartial examination         the defendant institution to communicate to it PSA's
of all the relevant aspects of the question submitted for its        observations on the complaint and PSA 's answers to certain
consideration and the right of the party concerned to make           questions posed in the context of the investigation and,
its views known and to be given an adequate statement of             second, of the defendant's intention, which is apparent from
reasons for the decision . It maintains that the Commission
                                                                     the letter of 12 September 1995 , to deal with the Sodima
had no excuse for not dealing with the matter, since it knew         matter jointly with other matters also relating to Peugeot's
that its failure to adopt a definitive position was making it        dealership system.
possible for agreements and practices to be freely adopted
with a view to the partitioning of the market, constituting          As regards the Commission's failure to act, the applicant
infringements which are regarded as particularly serious .           considers that it failed in the present case to carry out a full
The applicant consequently requests the Court to declare             inquiry into the matter in the context of the administrative
that the Commission has wrongly failed to act.                       procedure and to examine carefully, impartially, and with
                                                                     full knowledge of all the relevant elements of the case, the
The applicant further states that the situation has been             factual and legal aspects submitted for its consideration .
aggravated as a result of the Commission 's failure to act, and
that it is experiencing increasing difficulties in obtaining a       As to the implicit refusal to communicate Peugeot's
normal level of supplies . It therefore seeks an order               observations or any of the questions which may have been
requiring the Commission to pay it compensation for the              put to Peugeot, the applicant considers that the principle of
damage which it is suffering as a result of the shortage of          equality of arms, which must apply not only to the specific
supplies of vehicles from the PSA group .                            victims of anti-competitive practices but also to
                                                                     undertakings which may be found to have committed an
                                                                     infringement and to the Commission, does not permit the
 ---pagebreak--- 9 . 12 . 95            EN                   Official Journal of the European Communities                                 No C 333/21
withholding from the complainant of information as                     nevertheless obliged to carry out a careful and impartial
significant as the existence and contents of requests for              examination of all the relevant elements of each case, in
information and the observations of the undertaking                    order to be able to assess, with full knowledge of the matter,
concerned on the issues involved or on the request for its             the factual and legal aspects submitted by the complainants
comments on the complaint. The applicant remains                       for its consideration .
unaware of the nature of the request for information which
was addressed to Peugeot in the four matters referred to by            The applicant contends that the defendant institution failed
DG IV, and consequently whether that request has any                   to comply with those requirements in the present case. It
bearing whatever on its complaint.                                     argues in that regard that it is not open to the Commission to
                                                                       claim that there was no sufficient Community interest such
Lastly, the decision to proceed on the basis of a system of            as to require it to move on to the next stage of the procedure,
interconnections between the Sodima matter and other                   namely notification of the complaints, or at least the
matters, which is apparent from the Commission's letter of             communication of its intentions pursuant to Article 6 of
12 September 1995 , may be regarded as an artifice designed            Regulation No 99/63 , since :
to delay the outcome of the procedure in the applicant's own
case and to make improper use, in the other cases, of the              ( a ) the Commissioner responsible for competition matters
specific evidence produced by the applicant, thereby                          has publicly stated on numerous occasions that
disregarding the terms laid down by the complainant and                       complaints will be dealt with quickly and that sanctions
the requirements of confidentiality.                                          will be imposed where complaints are well-founded;
                                                                       ( b ) in the present matter, preparatory inquiries into the
                                                                              complaint were all the more necessary in that Nissan
                                                                              France involved the Commission in the drafting of its
Action brought on 17 October 1995 by Société Guérin                           dealership agreement, as is apparent from a letter of
Automobiles against the Commission of the European                             1 July 1993 sent by Nissan France to the applicant.
                            Communities
                                                                       It further states that, had the Commission adopted a
                         ( Case T- 195/95 )                            decision in the form of a withdrawal of exemption or a
                           ( 95/C 333/39 )                             declaration that the clauses and practices followed in its
                                                                       dealings with Nissan France were contrary to Community
                 (Language of the case: French)                        competition law, the applicant would have been able more
                                                                       rapidly to obtain an order for compensation from the
An action against the Commission of the European                       national court before which the matter is pending.
Communities was brought before the Court of First
Instance of the European Communities on 17 October 1995
by Societe Guerin Automobiles, established at Alen^on
( France ), represented by Jean-Claude Fourgoux, of the Paris
Bar, with an address for service in Luxembourg at the
Chambers of Pierrot Schiltz, 4 Rue Beatrix de Bourbon .                Action brought on 17 October 1995 by 'H' against the
                                                                                  Commission of the European Communities
The applicant claims that the Court should :                                                   ( Case T-l 96/95 )
— declare that the Commission has wrongfully failed to                                           ( 95/C 333/40 )
     act ,
                                                                                        (Language of the case: French)
— alternatively, declare on the basis of Article 215 of the
     Treaty that the Commission has thus incurred                      An action against the Commission of the European
     non-contractual liability towards the applicant, and              Communities was brought before the Court of First
     order it to pay to the applicant compensation assessed at         Instance of the European Communities on 17 October 1995
     FF 1 577 188,53 ,
                                                                       by 'H ', residing in Brussels, represented by Pierre-Paul van
— order the Commission to pay the costs .                              Gehuchten and Jacques Sambon, of the Brussels Bar, with
                                                                       an address for service at the Chambers of Louis Schiltz,
                                                                       2 Rue du Fort Rheinsheim .
Pleas in law and main arguments:
The applicant company, a concessionaire of Nissan France               The applicant claims that the Court should:
( which imports Nissan vehicles and is a subsidiary of the
Japanese manufacturer ), contests the Commission's refusal             — declare the conclusions of the Invalidity Committee
to act on a complaint lodged by it against Nissan France                     irregular and void,
concerning the compatibility of the dealership agreement
with Article 85 of the EC Treaty and Regulation                        — annul the decision of the Commission of the European
No 123/85 .                                                                  Communities of 27 September 1994 retiring the
                                                                             applicant and granting her an invalidity pension
It considers that, whilst the Commission is indeed at liberty                pursuant to the provisions of the third paragraph of
to establish an order of priority in dealing with matters, it is             Article 78 of the Staff Regulations,