CELEX: C1995/137/59
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 23 February 1995 by Castle Cement Ltd against the Commission of the European Communities (Case T-56/95)

3 . 6 . 95               EN                  Official Journal of the European Communities                                 No C 137/23
Action brought on 17 February 1995 by Syndicat National                  Action brought on 21 February 1995 by Van Megen Sports
de l'lndustrie Cimentiere ( SFIC ) v. Commission of the                  Group BV against the Commission of the European
                       European Communities                                                          Communities
                           ( Case T-36/95 )                                                       ( Case T-49/95 )
                             ( 95/C 137/57 )                                                        ( 95/C 137/58 )
                    (Language of the case: French                                         (Language of the case: Dutch)
An action against the Commission of the European                         An action against the Commission of the European
Communities was brought before the Court of First                        Communities was brought before the Court of First
Instance of the European Communities on 17 February                      Instance of the European Communities on 21 February
1995 by the Syndicat National de l'lndustrie Cimentiere                  1995 by Van Megen Sports Group BV, whose registered
( SFIC ), whose registered office is in Paris, represented by            office is in Eindhoven (Netherlands ), represented by A. W.
Edouard Didier and Jean-Claude Rivalland, of the Paris Bar,              Willems, Boskamp & Willems Chambers, Eindhoven, with
with an address for service in Luxembourg at the Chambers                an address for service in Luxembourg at the Registry of the
of Carlos Zeyen, 67 Rue Ermesinde.                                       Court of First Instance .
The applicant claims that the Court should :                             The applicant claims that the Court should :
— annul in whole or in part, Articles 1 , 2 , 3 ( 2 ), 4 ( 1 ), 4 ( 2 ), declare null and void the Commission's Decision of
      5 and 9 of the Commission 's Decision of 30 November
                                                                         21 December 1994 relating to a proceeding pursuant to
      1994 in so far as those articles concern the SFIC,                 Article 85 of the EC Treaty ( IV/32.948 — IV/34.590 :
                                                                         Tretorn and others ) (*).
— order the Commission to pay the costs .
Pleas in law and main arguments adduced in support:                      Pleas in law and main arguments adduced in support:
In support of its application the applicant puts forward the             Breach of essential procedural requirements and/or of a rule
following pleas in law:                                                  of law which must be complied with when applying the
                                                                         Treaty.
  I. Breaches of formal and procedural requirements :
                                                                         In its abovementioned decision the Commission imposed a
       1 . During the administrative procedure prior to the              fine on the applicant on the ground that it infringed
           adoption of the Decision: the applicant maintains in          Article 85 ( 1 ) by participating in the implementation in the
           particular that the statement of objections failed to         Netherlands of the reporting and investigation of parallel
           comply with the obligation to specify individually            imports in order to enforce Tretorn Sports Ltd's policy of
           the objections raised and the evidence tendered               preventing parallel imports and exports .
           against it and also that it was unable to obtain full
           access to the file .                                          The applicant considers that the conclusion reached by the
                                                                         Commission in its decision cannot be supported by the
       2 . As regards the adoption of the Decision: the                  evidence available to it, that that conclusion is insufficiently
           applicant considers that the Decision contains                reasoned by the Commission and that insufficient
           several defects relating to the circumstances of its          arguments are given justifying ( the level of the ) actual
           adoption, to its form and to the procedure                    penalty ( in proportion to that of the other parties
           followed :                                                    concerned ).
            ( a ) breach of the principle of collegiality;                (') OJ No L 378 , 31 . 12 . 1994 , p . 45 .
            ( b ) use of excluded documents :
            ( c ) condemnation of the applicant on the basis of
                  objections not expressly mentioned in the
                  statement of objections;                                Action brought on 23 February 1995 by Castle Cement Ltd
                                                                            against the Commission of the European Communities
            ( d ) use of new evidence ;
                                                                                                   ( Case T-56/95 )
            ( e ) defective statement of reasons .                                                   ( 95/C 137/59 )
 II . Inadequate evidence : as regards both the charge of an
       agreement to respect home markets and the other                                    (Language of the case: English)
       infringements charged, the Commission has not proved
       to the requisite legal standard that the applicant, as             An action against the Commission of the European
       such, was involved , or that the conduct at the factual            Communities was brought before the Court of First
       level that was attributable to it exceed the lawful bounds         Instance of the European Communities on 23 February
       of its functions as a trade association and/or approved            1995 by Castle Cement Ltd represented by Mr Nicholas
       statistical body .                                                 Forwood , Mr John Cook, with an address for service in
                                                                          Luxembourg at the chambers of Arendt & Medernach,
                                                                          Boite Postale 39 , L-2010 Luxembourg.
 ---pagebreak--- No C 137/24            EN                   Official Journal of the European Communities                                         3 . 6 . 95
The applicant claims that the Court should :                           The applicant claims that the Court should :
— annul        Commission          Decision    94/815/EC      of       — annul the Commission decision of 30 November 1994
    30 November 1994 ( l ) wholly or alternatively in part in               ( IV/33.126 and 33.322 — Cement) in its entirety so far
    so far as it relates to the applicant,                                  as it concerns the applicant, and consequently annul the
                                                                            fine imposed on the applicant,
— cancel, or alternatively reduce , the fine imposed by
    Article 9 , and                                                    — reduce the fine imposed on CIMPOR, should it decide
                                                                           that it is inappropriate to annul the Commission
— award to the applicant the costs of the application .                    decision in its entirety so far as it concerns the
                                                                           applicant,
Pleas in law and main arguments adduced in support:
                                                                       — order the Commission to pay the whole of the costs .
The Castle submits that the Decision is based upon an
erroneous theory of a ' single and continuous agreement'
which enables the Commission to sew together distinct                  Pleas in law and main arguments adduced in support:
infringements covering different cement associations and
undertakings, different time periods, different markets and            The applicant claims that the legality of the contested
Member States and having different characteristics and                 decision is vitiated by the following defects :
which has led the Commission into a number of manifest
errors of reasoning, inference , and procedure with respect to          I. Defects relating to infringement of the rights of the
proof and economic analysis and to disregard the customary                     defence, arising from :
procedural protection recognized under Community law for
undertakings accused of infringing Article 85 .                                1 . partial notification      of   the    statement       of
                                                                                   objections;
The Commission 's theory has also led it to impose a fine on
Castle which is wholly disproportionate to its role and
responsibility.                                                               2 . general and non-specific nature of the charges ;
Castle contests that there was a Cembureau Agreement as                        3 . limited access to the documents collected by the
alleged by the Commission and denies any participation in                          Commission or used by it in the preliminary
any form of collusion between the UK producers ( Blue                              procedure and in the grounds of its decision;
Circle, Castle and Rugby ) and that its participation to the
European Export Committee was motivated by any                                4 . failure in those parts of the statement of objections
anti-competitive intent or did produce such effects .                              directed against the applicant to identify the
                                                                                   documents      on which the     final decision was
(M OJ No L 343 , 30 . 12 . 1994 .                                                  based;
                                                                              5 . unjustified restriction of the right to a fair hearing,
                                                                                   as a result of the manner in which the hearing of the
                                                                                   parties concerned was organized;
                                                                              6 . use of incomplete documentation as evidence of the
Action brought on 23 February 1995 by CIMPOR —                                     infringements with which the applicant is
Cimentos de Portugal SA against the Commission of the                              charged ;
                    European Communities
                         ( Case T-61/95 )
                                                                              7. impairment of the right to reply orally and in
                           ( 95/C 137/60 )                                         writing and confusion in the administrative
                                                                                   procedure between the preliminary examination
            (Language of the Case: Portuguese)                                     and the statement of their case by the parties .
                                                                       II . Defects relating to the classification of, and evidence
An action against the Commission of the European                              for, the infringements with which the applicant is
Communities was brought before the Court of First                             charged , arising from:
Instance of the European Communities on 23 February
1995 by CIMPOR — Cimentos de Portugal SA, whose
registered office is at 35 Rua Alexandre Herculano, Lisbon,                    1 . breach of Article 85 of the EC Treaty, as a result of
represented by Carlos Botelho Moniz, Adelino Duarte,                               the threefold charge in respect of the same
Teresa Mendes and Amadeu Brandao Cola^o, all members                               infringement;
of the Portuguese Bar, whose Chambers are at 63/6 Rua
Castilho , 1250 Lisbon, with an address for service in                        2 . an error in the grounds of the decision, as a result of
Luxembourg at the Chambers of Aloyse May, 31                                       the inadequate definition and classification of the
Grand-Rue .                                                                        market;