CELEX: C1999/086/39
Language: en
Date: 1999-03-27 00:00:00
Title: Action brought on 7 December 1998 by Atlantic Container Line AB and 11 Others against the Commission of the European Communities (Case T-191/98)

27.3.1999            EN               Official Journal of the European Communities                                   C 86/19
Action brought on 7 December 1998 by Atlantic                    dated 16 September 1998 which is the subject of this
Container Line AB and 11 Others against the Commission           application.
               of the European Communities
                      (Case T-191/98)
                                                                 The contested decision finds that the applicants have
                       (1999/C 86/39)                            committed three infringements of Article 85 of the EC
                                                                 Treaty and Article 53 of the EEA Agreement and two
                                                                 abuses of a collective dominant position under Article 86
                                                                 of the EC Treaty and Article 54 of the EEA Agreement.
              (Language of the case: English)                    The contested decision orders the applicants to terminate
                                                                 those infringements and imposes fines amounting, in total,
                                                                 to ECU 273 million, the highest ever imposed on a group
                                                                 of companies in the history of EC competition law.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 7 December
1998 by Atlantic Container Line AB, represented by John          A. P r o c e d u r a l I s s u e s
Pheasant, Nicholas Bromfield and Matthew Levitt of
Lovell White Durrant, Denis Waelbroeck and Ute
Zinsmeister of Liedekerke SimeÂon Wessing Houthhoff,             1. The applicants submit that the contested decision
with an address for service in Luxembourg at the                     should be annulled for failure to respect the
Chambers of Loesch and Wolter, 11, rue Goethe.                       applicant's right to be heard in the following respects:
                                                                     Ð the Commission's administrative procedure leading
The applicants claim that the Court should:                              to the adoption of the decision was defective in
                                                                         that the Commission did not address a valid
                                                                         statement of objections to the applicants;
Ð annul the Commission decision of 16 September 1998
    relating to a proceeding pursuant to Articles 85 and             Ð the decision contains a finding of infringement,
    86 of the EC Treaty (Case No IV/35.134 Ð                             namely, the abusive alteration of the structure of
    Trans-Atlantic Conference Agreement);                                the market, which was based on allegations on
                                                                         which the applicants were given no opportunity to
                                                                         comment in the administrative procedure;
Ð in any event, annul the fines imposed on each of the
    applicants or reduce such fines by the amounts                   Ð in any event, the decision contains many matters,
    considered appropriate by the Court in all the                       material to its adoption on which the applicants
    circumstances;                                                       were given no opportunity to comment during the
                                                                         administrative procedure in accordance with the
                                                                         applicable legal principles.
Ð order the Commission to pay the applicants' costs; and
                                                                 2. The applicants submit that the Commission has
                                                                     infringed the applicants' right of defence by not
                                                                     granting proper access to the file.
Ð order the Commission to pay the costs incurred by
    each applicant in providing a bank guarantee or other
    security in lieu of payment of the fines pending
    judgment by the Court.                                       3. The applicants submit that the Commission's appraisal
                                                                     of the case and its conduct of the procedure is
                                                                     defective for two reasons:
Pleas in law and main arguments adduced in support:
                                                                     Ð the Commission did not conduct the procedure or
                                                                         assess the relevant facts, evidence and issues in
                                                                         accordance with the obligations of good
The applicants are liner shipping companies which,                       administration, objectivity and impartiality;
throughout the whole or part of the three years,
1994Ð1996, were members of the Trans-Atlantic
Conference Agreement, a liner shipping conference                    Ð the Commission did not carry out a properly
operating on the transatlantic trade between Northern                    reasoned analysis of the relevant facts, evidence
Europe and the United States of America. The applicants                  and issues in accordance with the obligations
are addressees of a decision of the European Commission                  arising out of Article 190 of the EC Treaty.
 ---pagebreak--- C 86/20                  EN              Official Journal of the European Communities                                   27.3.1999
B. A r t i c l e 8 5 I s s u e s                                        Ð an analysis of rates rebuts the finding that the
                                                                             applicants were dominant in the years
                                                                             1994Ð1996.
1. The applicants submit that the prohibition of
   European Intermodal Authority by virtue of Articles 1
   and 4 of the decision should be annulled.                        3. The applicants submit that the finding of abuse
                                                                        identified at Article 6 of the decision (namely, the
                                                                        alleged imposition of restrictions on the availability
                                                                        and contents of service contracts) should be annulled
2. The applicants submit that the Commission's                          for inter alia the following reasons:
   prohibition, in Articles 3 and 4 of the decision, of the
   applicant's agreement concerning the terms and
   conditions under which they may enter into service                   Ð the decision does not discharge the Commission's
   contracts with shippers should be annulled.                               duty to state reasons in accordance with
                                                                             Article 190 of the EC Treaty;
3. The applicants submit that the prohibition in Articles 2             Ð the Commission's assessment of the applicants'
   and 4 of the decision, in relation to the applicants'                     service contract rules under Article 86 of the EC
   agreement of maximum levels of freight forwarder                          Treaty is flawed.
   compensation and brokerage fees and related matters
   should be annulled.
                                                                        The applicants further submit that the finding of abuse
                                                                        identified at Article 5 of the decision (namely, the
C. A r t i c l e 8 6 I s s u e s                                        alleged alteration of the competitive structure of the
                                                                        market) should be annulled for inter alia reasons:
1. The applicants submit that the finding that the                      Ð the facts concerning the entry by Hanjin and
   applicants were capable of occupying a collective                         Hyundai into the transatlantic trade, and the
   dominant position should be annulled for inter alia the                   contacts between the applicants and other
   following reasons:                                                        operators concerning the possible entry of such
                                                                             other operators into the trade, are inconsistent
                                                                             with a finding of abuse;
   Ð the Commission's finding that the applicants are
        capable of occupying a collective dominant
        position is based on its failure do adopt the correct           Ð the applicants' alleged dual-rate service contracts'
        legal test of collective dominance and is vitiated by                provide no basis in fact for a finding of abuse;
        a lack of reasoning, contrary to Article 190 of the
        EC Treaty;
                                                                        Ð the Commission's finding that the applicants
                                                                             reserved' NVOCC business to certain of them is
   Ð the evidence of the applicants' individual strategies                   inconsistent with the facts;
        for competing on the price and service elements
        precludes a finding that the applicants were
                                                                        Ð there was no appreciable effect on competition.
        capable of occupying a collective dominant
        position.
                                                                    D. F i n e s
2. The applicants submit that the finding that the
   applicants in fact occupied a collective dominant
                                                                    In support of their request that the fines imposed should
   position in 1994Ð1996 should be annulled for inter
                                                                    be annulled or substantially reduced, the applicants submit
   alia the following reasons:
                                                                    inter alia the following arguments:
   Ð the Commission's definition of the relevant service
        and geographic market is flawed since it has failed         Ð contrary to the requirements of Article 19(2) of
        to apply the correct economic and legal test to the             Council Regulation (EEC) No 4056/86 (1) and
        facts;                                                          Article 190 of the EC Treaty, there is no finding that
                                                                        the applicants committed any intentional or negligent
                                                                        infringement;
   Ð the applicants' share of the relevant market, as
        defined either by the Commission or the
        applicants, provides no basis for a finding of              Ð in any event, the applicants have not intentionally or
        dominance;                                                      negligently infringed Article 86 of the EC Treaty;
 ---pagebreak--- 27.3.1999              EN                 Official Journal of the European Communities                                     C 86/21
Ð the Commission has erroneously disregarded the                     Pleas in law and main arguments adduced in support:
     applicants' immunity from fines in respect of the
     alleged restrictions on the availability and contents of
     service contracts;                                              In this application, the applicant, an official in Grade A 4,
                                                                     step 8, assigned to DG C2 of the Secretariat General of
                                                                     the Council, is seeking compensation for the loss suffered
Ð the Commission has failed to apply a rational and                  as a result of the numerous erros committed by the
     coherent methodology to its calculation of the fines,           defendant which left her without a post for a long period
     contrary to fundamental principles of Community law;            in her career and committed errors and faults in drawing
                                                                     up her Staff Report for the period 1993 to 1995.
Ð the Commission's assessment of the gravity and
     duration of the alleged infringements is flawed;
                                                                     According to the applicant, the defendant discriminated
                                                                     against her with regard to colleagues who were in
Ð the Commission has failed to take into account the                 situations identical to, or even less favourable than, her
     individual positions of each applicant and various              own (and were promoted), thus adversely affecting the
     mitigating factors.                                             proper progress of her career and, in particular, the
                                                                     promotion she was entitled to expect by virtue both of her
(1) Council Regulation (EEC) No 4056/86 of 22 December 1986          ability and her length of service. The defendant also
    laying down detailed rules for the application of Articles 85    disregarded the principles governing the Council Decision
    and 86 of the Treaty to maritime transport (OJ L 378,            of 18 October 1981 laying down the general provisions
    31.12.1986, p. 4).                                               for implementation of Article 43 of the Staff Regulations
                                                                     of Officials concerning Staff Reports.
                                                                     The harm suffered by the applicant results both from the
                                                                     absence of her 1993 to 1995 Staff Report at the time of
                                                                     the 1996 promotion procedure, and from the adverse
Action brought on 17 December 1998 by Gisela                         effect on her career progress, in particular the fact that she
    Stodtmeister against Council of the European Union               was not promoted.
                        (Case T-200/98)
                         (1999/C 86/40)
                (Language of the case: French)
                                                                     Action brought on 24 December 1998 by Lea
An action against the Council of the European Union was              Tessaro-Treibenreif against the Commission of the
brought before the Court of First Instance of the European                              European Communities
Communities on 17 December 1998 by Gisela
Stodtmeister, residing in Tervuren (Belgium), represented                                   (Case T-210/98)
by Georges Vandersanden and Laure Levi, of the Brussels
                                                                                             (1999/C 86/41)
Bar, with an address for service in Luxembourg at the
Offices of the Fiduciaire Myson SARL, 30 Rue de
Cessange.
                                                                                    (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
Ð award her compensation for her loss, in the sum of                 Instance of the European Communities on 24 December
     BEF 500 000, resulting from the absence of her Staff            1998 by Lea Tessaro-Treibenreif, residing in Luxembourg,
     Report for the period 1993 to 1995, on the occasion             represented by Carlo Revoldini, of the Luxembourg Bar,
     of the 1996 promotion procedure;                                with an address for service in Luxembourg at 180 Route
                                                                     de Longwy.
Ð award her a sum, by way of damages, equivalent to
     the difference in her salary between Grade A 3, to
     which she could legitimately have hoped to have been            The applicant claims that the Court should:
     appointed in January 1996, and Grade A 4, step 8,
     which she currently holds, and restoration of her
     career path together with the financial implications            Ð annul the decision of the European Commission
     thereof;                                                            suspending with retroactive effect from 1 January
                                                                         1997 the double dependent child allowance paid to
                                                                         the applicant pursuant to Article 67(3) of the Staff
Ð order the Council to pay all the costs.                                Regulations of Officials until June 1998;