CELEX: C1997/054/18
Language: en
Date: 1997-02-22 00:00:00
Title: Appeal brought on 10 December 1996 by Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV against the judgment delivered on 8 October 1996 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-24/93 between Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV and the Commission of the European Communities, supported by Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S and the Commission of the European Communities, T-26/93 between Deutsche Afrika-Linien GmbH & Co. and the Commission of the European Communities and T-28/93 between Nedlloyd Lijnen BV and the Commission of the European Communities (Case C-395/96 P)

No C 54/ 10           EN                  Official Journal of the European Communities                                      22 . 2 . 97
— breach and/or incorrect application of Article 186 of              Communities on 10 December 1996 by Compagnie
    the EC Treaty in that the President ruled that the               Maritime Beige Transport NV and Compagnie Maritime
    interim measures sought could be granted only on the             Beige NV, represented by Messrs Michel Waelbroeck and
    basis of a definitive assessment of the facts and pleas          Denis Waelbroeck, of the Brussels Bar, with an address for
    in law put forward and that the application for those            service in Luxembourg at the Chambers of Maitre Ernest
    measures     could   therefore   be   dismissed    without       Arendt, 8-10 rue Mathias Hardt.
    considering the pleas in law and arguments put
    forward by the applicant in justification . Neither the          The appellants claim that the Court should:
    wording of Article 186 of the EC Treaty nor the
    relevant case-law justifies dismissing an application for        — quash the judgment of the CFI,
    interim measures on the sole ground that the interim             — annul the contested decision of the Commission,
    measures sought involve ( in part ) the granting of a
    sum of money (for damages ). The applicant had,                  — alternatively, if the decision of the Commission is
    moreover, . pointed out that under inter alia                          not annulled in its entirety, annul or, at the very
    Netherlands law it is possible in certain circumstances                least, reduce substantially the fine imposed on the
    to grant ( partial ) compensation in interlocutory                     appellants,
    proceedings ( as an interim measure ),
                                                                     — in any event, order the Commission and the
— breach of Article 186, of the obligation to state                        Interveners to pay the costs of the whole procedure .
    reasons and/or of the right to a fair hearing in that the
    President failed to consider whether other appropriate           Pleas in law and main arguments adduced in support:
    provisional measures might have been granted in order
                                                                     In the present appeal the appellants limit themselves to the
    to protect the applicant's interests,
                                                                     following points, namely:
— breach of Article 186 of the EC Treaty, of the                     — that none of the three alleged abuses which have been
    obligation to state reasons and of the right to a fair                 held against them by both the Commission and the
    hearing in that the President made the order without                   Court of First Instance can be characterized as such,
    allowing the applicant an opportunity to provide
    further clarification of his point of view orally.               — that the Court of First Instance was wrong in rejecting
                                                                           their arguments as to the collective assessment of their
                                                                           dominance,
                                                                     — that, at the very least, the fine should be substantially
                                                                           reduced,
Appeal brought on 10 December 1996 by Compagnie                      — that the appellants ' right to a fair hearing have been
Maritime Beige Transport NV and Compagnie Maritime                         infringed by the Court of First Instance,
Beige NV against the judgment delivered on 8 October
1996 by the Third Chamber, Extended Composition, of                  — that the Court of First Instance has infringed the
the Court of First Instance of the European Communities                    appellants' right to a strict interpretation of criminal
in Joined Cases T-24/93 between Compagnie Maritime                         law provisions .
Beige Transport NV and Compagnie Maritime Beige NV
and the Commission of the European Communities,                      In particular, the present appeal is based on the following
supported by Grimaldi and Cobelfret, T-25 /93 between                grounds :
Dafra Lines A/S and the Commission of the European
Communities, T-26/93 between Deutsche Afrika-Linien                  As to the first alleged abuse consisting in 'participating in
GmbH &C Co . and the Commission of the European                      the implementation of the Ogefrem Agreement and
Communities and T-28/93 between Nedlloyd Lijnen BV                   insisting repeatedly by a variety of means that it be strictly
    and the Commission of the European Communities                   complied with', the Appellants respectfully submit:
                      (Case C-395/96 P)                              ( a ) that the Court of First Instance in its judgment has not
                         ( 97/C 54/18 )                                    based itself on the previous accusations made by the
                                                                           Commission but on an entirely new accusation —
                                                                           never made before by the Commission, and not
An appeal against the judgment delivered on 8 October                      supported by the facts — and by doing so violated
1996 by the Third Chamber, Extended Composition, of                        their rights of defence and their right to a fair trial;
the Court of First Instance of the European Communities
in Joined Cases T-24/93 between Compagnie Maritime                   ( b ) that the judgment of the Court of First Instance is
Beige Transport NV and Compagnie Maritime Beige NV                         further affected by a manifest contradiction in
and the Commission of the European Communities,                            reasoning;
supported by Grimaldi and Cobelfret, T-25/93 between
Dafra Lines A/S and the Commission of the European                   (c ) that in any event, even if the original accusation had
Communities, T-26/93 between Deutsche Afrika-Linien                        not been changed by the Court of First Instance, the
GmbH & Co. and the Commission of the European                              alleged abuse cannot be held against the appellants;
Communities and T-28/93 between Nedlloyd Lijnen BV                         that the Court of First Instance has entirely ignored
and the Commission of the European Communities, was                        the various pleas put forward by the appellants in that
brought before the Court of Justice of the European                        respect .
 ---pagebreak---  22 . 2 . 97                EN                Official Journal of the European Communities                                          No C 54/ 11
 As to the second alleged abuse consisting in the so-called               ( b ) that even if the Court of First Instance was right in its
 'fighting ships' practices, the appellants respectfully                         interpretation of Article 5 (2 ) ( b ) ( i ) of the Regulation ,
 submit :                                                                        the appellants only failed to comply with an
                                                                                 'obligation ' attaching to exemption and not with a
                                                                                 'condition ' attaching to exemption; that therefore the
 ( a ) that the Court of First Instance has interpreted the                      Commission was obliged first to withdraw the benefit
        contested decision as being based on a definition of                    of the block exemption (ex nunc) before
        ' fighting ships' which is diametrically different from                 contemplating the adoption of other measures under
        that contained in the statement of objections; that if                  Article 86 of the EC Treaty if the infringement
       the Court of First Instance is right in this                             continued ( infringement of Articles 7(1 ) and 8 ( 2 ) of
        interpretation of the Decision , it should necessarily                  Regulation ( EEC ) No 4056/86 );
        have     concluded    that  the  decision     offended the
        appellants ' rights of defence and their right to a fair
       trial ;                                                            ( c ) that, finally, the Court of First Instance has given to
                                                                                the decision a meaning which is irreconcilable with its
                                                                                own terms .
 ( b ) that — alternatively — if the Court of First Instance
       has interpreted wrongly the Commission's decision, it
       has modified itself the accusation against the                    As to the applicability of Article 86 of the EC Treaty in
       appellants in violation of the appellants ' rights of             case of collective dominance, the appellants respectfully
       defence and to a fair hearing;                                    submit :
( c ) that the appellants have demonstrated that none of the             ( a ) that the Commission 's Decision contained no sufficient
       conditions of the original accusation made against                       reasoning to justify the applicability of Article 86 of
       them in the statement of objections was met; that the                    the EC Treaty collectively to the Cewal members and
       newly defined accusation against the appellants ( as                     that it was not for the Court of First Instance to
       opposed to the original accusation made in the                           supplement or second-guess the reasoning of the
       statement of objections ) is incompatible with Article 86                Commission by extracting individual elements from
       of the EC Treaty in so far as it prohibits a conference                  the decision to support a collective assessment of their
       to merely respond to requests of customers to adapt                      position on the market;
       the conference 's tariffs to those of an outsider, without
       having thereby incurred any losses, nor having made
       any price discrimination; that dominant companies                 ( b ) that in order to establish a collective dominance, the
       must indeed be entitled to meet competition from                         Court of First Instance has wrongly relied on the fact
       third parties, and that there is in any event no possible                that the undertakings in question participated in ' what
       charge of predation against a dominant firm 's pricing                   is essentially, if anything at all , an Article 85 practice';
       policy above average costs;
                                                                         ( c ) that the Court of First Instance erred in law when it
( d ) that neither the name given to the practice by Cewal                      decided that concerted behaviour among Cewal
       members nor the intention pursued by the parties is                      members could be viewed as ' abuses ' within the
       relevant in assessing the existence of an abuse; that the                meaning of Article 86 of the EC Treaty, although they
       Commission itself has consistently held that ' it does                   were not the result of unilateral conduct by the Cewal
       not consider an intention even by a dominant firm to                     members;
       prevail over its rivals as unlawful '.
                                                                         ( d ) that, at the very least, the Court of First Instance has
As to the third alleged abuse resulting from the fact that                      not responded to the appellants ' pleas in that respect.
100% loyalty agreements were offered by Cewal , the
appellants respectfully submit:
                                                                         Alternatively, the appellants claim that the fine should be
                                                                         annulled or substantially reduced . Indeed , they have
( a ) that a condemnation of the appellants ' loyalty rebates            shown :
       in this instance means a de facto rewording of Article
       5 ( 2 ) ( b ) ( i ) of Regulation ( EEC ) No 4056/86 (')
       ( which allows expressly conference members 'to                   ( a ) that the fine imposed on CMB is higher than its whole
       institute and maintain loyalty arrangements with                         turnover achieved on the relevant market in the year
       transport users') into a rule saying that 100% loyalty                   preceding the decision and is thereby probably the
       rebates may be offered provided that prevailing                          highest fine in relative terms ever imposed by the
       marketing conditions are such that the conference is                     Commission ; that this high amount was not justified
       not dominant; that according to the Court of First                       by the special gravity of the alleged infringements , nor
       Instance 's own definition of collective dominance , this                by their duration , nor by alleged profits made as a
       will however never be the case and that therefore the                    result, nor by an uncooperative attitude of the
       interpretation given by the Court of First Instance                      appellants, nor by the nature and value of the
       deprives the regulation of its 'effet utile ';                           products/services concerned;
 ---pagebreak--- No C 54/ 12                  EN~1            Official Journal of the European Communities                                  22 . 2 . 97
( b ) that account ought to have been taken of the difficult            Appeal brought on 10 December 1996 by Dafra Lines A/S
      financial position of the appellants, as well as of the           against the judgment delivered on 8 October 1996 by the
      novelty of the alleged infringements, of the regulatory           Third Chamber, Extended Composition, of the Court of
      context in Zaire, and of the cooperative attitude of the          First Instance of the European Communities in Joined
      appellants;                                                       Cases T-24/93 between Compagnie Maritime Beige
                                                                        Transport NV and Compagnie Maritime Beige NV and the
                                                                        Commission of the European Communities, supported by
( c ) that the statement of objections was not addressed to             Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S
      the appellants but to Cewal , and the statement of                and the Commission of the European Communities, T-26/
      objections threatened to impose fines on Cewal and                93 between Deutsche Afrika-Linien GmbH & Co . and the
      not on its members, and that therefore the                        Commission of the European Communities and T-28/93
      Commission was not entitled thereafter to impose                  between Nedlloyd Lijnen BV and the Commission of the
      fines on some of Cewal 's members without having                                     European Communities
      announced it in the statement of objections;                                           ( Case C-396/96 P )
                                                                                                 ( 97/C 54/ 19 )
( d ) that no reason is given why 95 % of the fine should
      have been imposed on CMB (which carried 35 % of                   An appeal against the judgment delivered on 8 October
      the trade ) while no fine was imposed on CMZ ( which              1996 by the Third Chamber, Extended Composition, of
      carried 40 % of the trade ); that the only reason is that         the Court of First Instance of the European Communities
      the Commission found it politically difficult to impose           in Joined Cases T-24/93 between Compagnie Maritime
      a fine on a Zairian liner company; that the                       Beige Transport NV and Compagnie Maritime Beige NV
      Commission also wanted to strike a 'political balance '           and the Commission of the European Communities,
      with the fine imposed previously, for a very different            supported by Grimaldi and Cobelfret, T-25/93 between
      behaviour, on the French company Delmas;                          Dafra Lines A/S and the Commission of the European
                                                                        Communities, T-26/93 between Deutsche Afrika-Linien
                                                                        GmbH &C Co . and the Commission of the European
( e ) that also the interest rate applicable to the payment of          Communities and T-28/93 between Nedlloyd Lijnen BV
      the fine ( 13,25% ) is abnormally high .                          and the Commission of the European Communities, was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 10 December 1996 by Dafra Lines A/S ,
The appellants finally submit that anti-trust procedures                represented by Messrs Michel Waelbroeck and Denis
resulting in the imposition of fines upon companies are                 Waelbroeck, of the Brussels Bar, with an address for
procedures having criminal character within the meaning                 service in Luxembourg at the Chambers of Maitre Ernest
of the ECHR and that therefore the Court of First                       Arendt, 8 — 10 rue Mathias Hardt .
Instance has infringed :
                                                                        The appellant claims that the Court should :
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the        — quash the judgment of the CFI,
      accusation' has been modified by the Court of First
      Instance;                                                         — annul the contested decision of the Commission,
                                                                        — alternatively, if the decision of the Commission is not
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of                 annulled in its entirety, annul or, at the very least,
      First Instance has considered that the appellants could               reduce substantially the fine imposed on the appellant,
      be fined, contrary to all existing case-law, for entirely
      novel abuses,           never condemned   before,  and    in      — in any event, order the Commission to pay the costs of
      particular:                                                           the whole procedure .
                                                                        Pleas in law and main arguments adduced in support:
      — their refusal to renounce an exclusivity right
           granted by the State ,                                       In the present appeal the appellants limit themselves to the
                                                                        following points , namely :
      — their meeting competition with an outsider,
           without making losses,                                       — that none of the three alleged abuses which have been
                                                                            held against them by both the Commission and the
                                                                            Court of First Instance can be characterized as such ,
      — their granting loyalty rebates, expressly exempted
           by a group exemption regulation .                            — that the Court of First Instance was wrong in rejecting
                                                                            their arguments as to the collective assessment of their
(') Council Regulation ( EEC ) No 4056/86 of 22 December 1986               dominance,
     laying down detailed rules for the application of Articles 85
     and 86 of the Treaty to maritime transport ( OJ No L 378 ,         — that, at the very least, the fine should be substantially
     31 . 12 . 1986 , p. 4 ).                                               reduced ,
                                                                        — that the appellants' right to a fair hearing have been
                                                                            infringed by the Court of First Instance,