CELEX: C1997/074/50
Language: en
Date: 1997-03-08 00:00:00
Title: Action brought on 15 January 1997 by Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. against the Commission of the European Communities (Case T-6/97)

No C 74/24            EN                 Official Journal of the European Communities                                      8 . 3 . 97
 Action brought on 13 January 1997 by Industrie des                  as the defendant took the view that Pechiney had
 Poudres Spheriques (IPS ) against the Commission of                 attempted to improve the quality of its calcium with a
                   the European Communities                          view to supplying the applicant. The applicant stresses the
                         ( Case T-5/97 )                             fact that the statements made on several occasions by
                                                                     Pechiney, in numerous exchanges of correspondence with
                           ( 97/C 74/49 )                            the applicant, concerning the production of the calcium
                                                                     which it was awaiting, were never followed by the
                 (Language of the case: French)                      slightest explanation as to the reasons why that calcium
                                                                     was never ready. Moreover, according to the applicant,
 An action against the Commission of the European                    Pechiney has failed to provide any details whatever
 Communities was brought before the Court of First                   concerning the arrangements which it was allegedly
 Instance of the European Communities on 13 January                  making in order to improve the quality of its calcium.
 1997 by Industrie des Poudres Spheriques ( IPS ), having its        Consequently, the Commission merely undertook a
 seat at Annemasse ( France ), represented by Chantal                superficial appraisal of the various items of
 Momege, of the Paris Bar, with an adress for service in             correspondence sent by Pechiney to the applicant, without
 Luxembourg at the Chambers of Aloyse May, 31 Grand­                 embarking on any serious assessment of the documents in
 Rue .                                                               the case .
 The applicant claims that the Court should:                         In addition to pleading the erroneous appraisal concerning
                                                                     the existence of abusive practices, the applicant claims
— annul the Commission 's decision of 7 November 1996                that the Commission's analysis is based on a number of
     rejecting its complaint in Case IV/35151/E-1 ,                  errors of assessment, in that the defendant:
— order the Council to pay all the costs.                           — considers that the applicant's process calls for
                                                                          particular specifications which differ from those of
                                                                          other calcium metal processors,
Pleas in law and main arguments adduced in support:
                                                                    — states that no producer has specified the oxygen
The applicant, a small company specializing in the                       content of its calcium,
production of granulated radioactive metals, needs, in
order to meet its production requirements, to obtain                — disregarded the fact that the difficulty in arriving at a
supplies of calcium metal. Since commencing production                   reliable method of analysing the calcium is attributable
in 1982, it has approached Pechiney, the sole Community                  to unwillingness on the part of Pechiney, and
producer, with a view to procuring from the latter all the
supplies of the product which it requires. However, its
                                                                    — took the view that the applicant could obtain
endeavours have been wholly fruitless. The applicant
                                                                         deliveries from western suppliers or from other third
states, by way of explanation for Pechiney's conduct, that               countries .
the latter has developed a process in competition with that
of the applicant and that the two companies have become
competitors as regards the derivative product known as
split calcium. According to the applicant, one of the
delaying tactics employed by Pechiney has been to use the
anti-dumping instrument solely in order to exclude
supplies from outside the Community.                                Action brought on 15 January 1997 by Comafrica SpA
                                                                    and Dole Fresh Fruit Europe Ltd & Co. against the
                                                                              Commission of the European Communities
The present action is directed against the rejection by the
Commission of the complaint lodged by the applicant                                          ( Case T-6/97 )
with a view to bringing to an end Pechiney's infringement                                     ( 97/C 74/50 )
of Article 86 of the EC Treaty in the calcium metal
market.                                                                              (Language of the case: English)
In support of its claims, the applicant maintains, first of         An action against the Commission of the European
all, that there has been an infringement of Articles 190            Communities was brought before the Court of First
and 86 of the Treaty, as well as a manifest error of                Instance of the European Communities on 15 January
assessment, in that the Commission disregarded the link             1997 by Comafrica SpA and Dole Fresh Fruit Europe Ltd
between Pechiney's delaying tactics and the use of the              & Co ., represented by Bernard O'Connor, with an address
anti-dumping instrument. By acting in that way, the                 for service in Luxembourg at the offices of Arsene
defendant failed to verify the extent to which Pechiney             Kronshagen, Rue Marie Adelaide 22.
abused its dominant position by resorting to the anti­
dumping procedure in conjunction with its exclusion                 The applicants claim that the Court should:
practics .
                                                                    — declare void, pursuant to Articles 173 and 174 of the
Second, the applicant also complains that the defendant                  EC Treaty, Regulation ( EC ) No 2035/96 in so far as it
has committed a manifest error of assessment, as well as                 affects the applicants, or alternatively, declare the said
an infringement of Article 86 of the EC Treaty, inasmuch                 regulation void erga omnes,
 ---pagebreak--- 8 . 3 . 97              EN |                 Official Journal of the European Communities                               No C 74/25
— order the Commission, pursuant to Article 178 and                     designed to prevent erosion of rights as between
     the second paragraph of Article 215 of the EC Treaty,              Categories A and B.
     to make good any damage caused to the applicants by
     the wrongful adoption of Regulation ( EC ) No 203 5/96,
                                                                        The role of the Member States in collecting and
                                                                        transmitting information to the Commission cannot
                                                                        prevent the latter from checking that such information is
— order the Commission to pay the costs incurred by the                 accurate .
      applicants.
                                                                        For the purpose of calculating the licence rights for 1997,
Pleas in law and main arguments adduced in support:
                                                                        most of the quantities handled by the various categories of
                                                                        operators could be accurately calculated simply by
                                                                        analysing licences issued and used during 1993 , 1994 and
                                                                        1995 . Furthermore, in adopting a provisional reduction
The applicants are members of the Dole group of                         coefficient based on such incorrect figures, the
companies, a group engaged in the worldwide business of                 Commission has acted in breach of the principle of non­
producing, processing, distributing and marketing quality               discrimination laid down in Article 40 ( 3 ) of the EC
branded fruit products, primarily fresh fruit and                       Treaty.
vegetables and packaged fruits and nuts . The applicants
are registered as Category A operators, as defined by
Article 2 ( a ) of Commission Regulation (EEC) No 1442/93
of 1 0 June 1993 laying down detailed rules for the application
of the arrangements for importing bananas into the
Community ( OJNoL 142, 12 . 6 . 1993 , p. 6 ).
                                                                        Action brought on 16 January 1997 by Union Carbide
                                                                        Corporation (UCC ) against the Commission of the
                                                                                           European Communities
The application concerns the administration by the
Commission of the rules governing the allocation of                                              (Case T-8/97 )
licences for the import of third-country and non­                                                 ( 97/C 74/51 )
traditional ACP bananas into the Community under the
tariff quota established by Article 18 ( 1 ) of Council
Regulation (EEC) No 404/93 of 13 February 1993 on the                                  (Language of the case: English)
common organization of the market in bananas (OJ No
L 47, 25 . 2 . 1993 , p. 1 ). It arises out of the decision of the
Commission to reduce the quantity of licences allocated to              An action against the Commission of the European
the applicants for the year 1997 through the application                 Communities was brought before the Court of First
of a provisional reduction coefficient based on incorrect                Instance of the European Communities on 16 January
reference quantities as set out in Commission Regulation                 1997 by Union Carbide Corporation (UCC ), represented
(EC ) No 2035/96 of 20 October 1996 fixing the single                    by Brian Hartnett, with an adress for service in
reduction      coefficient   for    the  determination    of   the       Luxembourg at the Chambers of Arendt & Medernach,
provisional quantity of bananas to be allocated to each                  Postal Box 39 .
operator in Categories A and B from the tariff quota for
1997 ( OJ No L 272 , 25 . 10 . 1996, p. 6 ).
                                                                        The applicant claims that the Court should:
In support of their claims, the applicants submit that the              — annul, in whole or in part, Commission Decision C/96
Commission determined the reference quantity on the                          1035 final — Shell/Montecatini, and
basis of figures which were known to be inaccurate .
According to them, these inaccuracies are not confined to
the figures themselves. Simple mistakes in mathematics                   — order the Commission to pay the costs, disbursements
and reporting have also been made . They consider, in this                   and fees of the applicant pursuant to Article 87 of the
regard, that even if the adoption of a provisional                           Rules of Procedure of the Court of First Instance of
 reduction coefficient might appear to be a practical                        the European Communities .
response to the difficult problem of monitoring the
 market, the difference between the reference quantities
                                                                         Pleas in law and main arguments adduced in support:
 claimed and the actual licences issued are used during the
 reference period, which amounts to an error of 27,8 % ,
 can no longer be justified on the basis of existing                     The pleas in law and main arguments are the same as
 difficulties resulting from the initial operation of the                those raised in Case T-153/96 (Union Carbide Corporation
 common organization of the market. The applicants stress                v. the Commission of the European Communities, OJ No
 that the abovementioned error gives rise to gradual                     C 354, 23 . 11 . 1996 , p. 33 ).
 erosion of their import rights and will result in their losing
 all rights to operate in the banana market, contrary to
 Article 19 (2 ) of Regulation ( EEC ) No 404/93 , which is