CELEX: C1995/119/49
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 25 February 1995 by Holderbank Financière Glarus Aktiengesellschaft against the Commission of the European Communities (Case T-68/95)

13 . 5 . 95          LEN                   Official Journal of the European Communities                                 No C 119/25
      2 , no reasons whatever were given for the Decision of          Michael Esser-Wellié, Rechtsanwälte, Düsseldorf, with an
           23 September 1993 to close the proceeding in               address for service in Luxembourg at the Chambers of Bonn
           relation to 12 German undertakings and six                 & Schmitt, 62 Avenue Guillaume.
           Spanish undertakings .
                                                                      The applicant claims that the Court should:
IV. In the alternative, the applicant argues that the fine
                                                                      — annul the defendant's Decision of 30 November 1994
      imposed should be reduced for infringement of
      Article 15 ( 2 ) of Regulation No 17/62 as regards:                 relating to a proceeding under Article 85 of the EC
                                                                          Treaty (IV/33.126 and 33.322 — Cement), notified to
       1 , the gravity and duration of the infringement;                  the applicant on 3 February 1995 , in so far as that
           and                                                            Decision relates to the applicant,
      2 , the calculation of the amount of the fine .                 — in the alternative, reduce the fine imposed on the
                                                                          applicant to such amount as the Court may
(!) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                 determine,
                                                                      — order the defendant to pay the costs of the
                                                                          proceedings .
                                                                      Pleas in law and main arguments adduced in support:
Action brought on 24 February 1995 by Reinhard Lassek
against the Council of the European Union and the                      I. The applicant complains of the following breaches of
                                                                           formal law:
          Commission of the European Communities
                         ( Case T-67/95 )                                  1 . The defendant infringed essential procedural
                           ( 95/C 119/48 )                                     requirements by granting the applicant only partial
                                                                               access to documents during the administrative
                (Language of the case: German)                                 proceeding and no access whatever after the
                                                                               adoption of the Decision . The defendant based its
An action against the Council of the European Union and                        Decision on documents with which the applicant
the Commission of the European Communities was brought                         was unacquainted and also failed to translate
before the Court of First Instance of the European                             foreign-language evidence .
Communities on 24 February 1995 by Reinhard Lassek,                        2. The defendant failed to comply with the
Grefrath-Mulhausen (Federal Republic of Germany),                              Community-law requirements regarding evidence
represented by Dr Lukanow, Rechtsanwalt, Euskirchen,                           and made findings of fact in respect of complex sets
with an address for service in Luxembourg at the Chambers                      of individual circumstances and periods of time
of Dupong & Associés, 14A, Rue des Bains .                                     which were unsupported by evidence, or at any rate
                                                                               were supported by insufficient evidence.
The applicant claims that the Court should :
                                                                           3 . The defendant provided inadequate and
— order the defendants to pay the applicant compensation                       contradictory reasons for its Decision and based it
     for the period of five milk years from 1 April 1988 in the                on findings which were both unsubstantiated and
     amount of DM 46 412,01 , together with 8 % interest                       incapable of verification.
     thereon from 1 July 1985 .
                                                                           4 . The calculation of the fine is defective since the
Pleas in law and main arguments adduced in support:                            defendant wrongly proceeds on the basis of a
                                                                               particularly serious infringement, assumes that the
The pleas in law and main arguments are similar to those in                    alleged infringement lasted for an excessively long
Case T-20/94 .                                                                 period of time and calculates the fine on the basis
                                                                               of an incaccurate turnover figure and reference
                                                                               period .
                                                                               By committing these breaches, the Commission
                                                                               infringed the principle of equal treatment in
   Action brought on 25 February 1995 by Holderbank                            contradictory proceedings as well as the principles
       Financière Glarus Aktiengesellschaft against the                        of a fair hearing and due process.
          Commission of the European Communities
                         (Case T-68/95 )                              II. The applicant complains of the following breaches of
                                                                           substantive law:
                           ( 95/C 119/49 )
                                                                           1 , ( a ) The applicant contests the defendant's
                (Language of tbe case: German)                                       allegations regarding the European Task Force
                                                                                     and its incompatibility with Article 85 ( 1 ) of the
An action against the Commission of the European                                     EC Treaty. The applicant takes particular issue
Communities was brought before the Court of First                                    with the defendant's claim that the European
Instance of the European Communities on 25 February                                  Task Force remains active up to the present
1995 by Holderbank Financière Glarus Aktiengesellschaft,                             day: on the contrary, that body ceased activity
Jona ( Switzerland), represented by Cornelis Canenbley and                           at the end of May 1987.
 ---pagebreak--- No C 119/26            EN                  Official Journal of the European Communities                                    13 . 5 . 95
         ( b ) The defendant is wrong to regard the                   The applicant claims that the Court should:
               establishment of Interciment SA as constituting
               a   permanent restriction      on competition.         — annul         Commission         Decision  94/815/EC        of
               Interciment SA was established as a subsidiary             30 November 1994 (*) in so far as it affects the
               of the applicant and was subsequently                      applicant,
               continued as no more than a shell company
               until its dissolution in March 1993 . As a             — in the alternative, annul the fine imposed on the
               'sleeping company', it was never active and                applicant,
               could never have generated any 'threat
               potential'. The participation of the single            — in the further alternative, reduce the amount of the fine
               temporary partner was discontinued in                      imposed on the applicant at the discretion of the Court
               November 1988 , with the result that any                   of First Instance, and
               infringements must be regarded as having been
               terminated by this date at the latest.                 — order the Commission to pay the costs .
         (c ) The applicant denies having ever concluded
               agreements in restraint of competition with the        Pleas in law and main arguments adduced in support:
               Greek producers Titan and Heracles. The
               relevant contracts with the Greek producers            The applicant relies upon the following grounds in support
               were concluded 'at arm's length', not by the           of its claims :
               applicant, but by its Spanish subsidiary
               'UMAR', which is not involved in the
               proceedings . The applicant also denies having           I. Breach of procedural guarantees . The applicant argues
                                                                            that its procedural rights have been seriously breached
               participated in concerted practices designed to
                                                                            for the following reasons:
               attract customers away from the Calcestruzzi
               undertaking.
                                                                            1 . Lack of clarity in the file;
         ( d ) The applicant denies having participated in a
               comprehensive cartel, the alleged Cembureau                  2. Defects in the Statement of Objections;
               agreement. The conduct of which it stands
               accused by the defendant ( even assuming it to               3 . Limited access to the file;
               be established ) is not of such kind as to prove
               participation in the alleged Cembureau                       4. Submission of illegible and erroneously cited
               agreement. The stratagem of a 'single and                        evidence and failure to translate certain documents
               continuous course of conduct' adopted to cover                   thereby impairing the applicant's right to a fair
               over the lack of evidence cannot obscure that
               fact.
                                                                                hearing.
    2 . In calculating the fine the defendant failed to take           II. Manifest errors in the assessment of the applicant's
        into account the fact that the infringements of which               conduct and failure to prove that its conduct infringed
        the applicant is accused are not serious                            Article 85 of the EC Treaty. The applicant contends
        infringements and that Interciment SA was no more                   that :
        than a sleeping company quite incapable of
        influencing market conditions. In any event, the                    1 . It was never involved in any agreement or
        defendant erred with regard to the assumed                              concerted practice concerning the so-called
        duration of the applicant's alleged infringements .                     ' Cembureau Principle';
                                                                            2 . The 'Export Policy Committee ' ( EPC) was not a
                                                                                vehicle for applying the so-called 'Cembureau
Action brought on 27 February 1995 by Hornos Ibéricos                           Agreement';
   Alba, SA ('Hisalba') against the Commission of the
                     European Communities                                   3 . The EPC was a legitimate forum for coordinating
                         (Case T-69/95 )                                        export activities and did not therefore constitute
                                                                                concerted action within the meaning of
                          ( 95/C 119/50 )                                       Article 85 ( 1 ).
                (Language of the case: Spanish)
                                                                      III. As a subsidiary plea, as regards the fine imposed, the
An action against the Commission of the European                            applicant contends that the Commission has made
Communities was brought before the Court of First                           manifest errors in assessing the seriousness and the
Instance on 27 February 1995 by Hornos Ibéricos, SA                         duration of the infringement alleged.
('Hisalba'), represented by Michael Schutte, of the Berlin
Bar, instructed by Audrey Stacey Winter and Luis Suârez de            (!) OJ No L 343 , 30 . 12 . 1994 , p . 1 .
Lezo Mantilla of the Madrid Bar, with an address for service
in Luxembourg at the Chambers of Axel Bonn, 62 Avenue
Guillaume,