CELEX: C2004/118/111
Language: en
Date: 2004-04-30 00:00:00
Title: Case T-138/04: Action brought on 7 April 2004 by Cementir Cementerie del Tirreno spa against the Commission of the European Communities

30.4.2004   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 118/51
            
         Action brought on 7 April 2004 by Cementir Cementerie del Tirreno spa against the Commission of the European Communities
   (Case T-138/04)
   (2004/C 118/111)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 April 2004 by Cementir Cementerie del Tirreno spa, represented by Denis Fosselard and Piero Fattori, lawyers.
   The applicant claims that the Court should:
   
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               annul the decision contained in the letter of 28 January 2004 inasmuch as it sets the default interest on the fine the applicant is required to pay at the sum of EUR 4 770 949,89
            
         
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               order the Commission to pay the costs.
            
         Pleas in law and main arguments:
   In the contested decision, the Commission applied a fixed rate of 7.25 % to determine the default interest owed on the amount of the fine imposed on Cementir by Commission Decision 94/815/EC of 30 November 1994, as amended by the Court of First Instance in Case T-87/95 of 15 March 2000, and subsequently upheld by the Court of Justice of the European Communities in Case C-219/00 P of 7 January 2004.
   The applicant contests the decision and bases its action on two grounds.
   In the first ground, it pleads infringement of the general principles of Community law and in particular of the right to effective judicial protection, since the application of a fixed rate of 7.25 % for a period of nine years has produced an excessive and particularly onerous amount of interest. According to the applicant, the use of a fixed rate, calculated on the basis of the market situation in 1995, proves completely unreasonable when applied to an extremely long time period such as more than nine years. Further, in the period in question market rates have fallen considerably and that has brought about a situation in which Cementir's right to judicial protection has been subject to particularly onerous conditions.
   In its second ground, the applicant asks the Court to annul the decision contained in the letter of 28 January 2004 on account of infringement of the principle of proportionality enshrined in Article 5 (ex Article 3b) of the EC Treaty. Cementir considers that the application of a variable rate of interest (increased by a reasonable spread) would be as effective in attaining the objectives pursued by the Commission, without imposing unjustified restrictions on the right to full judicial protection.