CELEX: C1998/358/34
Language: en
Date: 1998-11-21 00:00:00
Title: Action brought on 7 September 1998 by the Amministrazione Autonoma dei Monopoli di Stato against the Commission of the European Communities (Case T-139/98)

21.11.98              EN                 Official Journal of the European Communities                                  C 358/17
In particular, it emphasizes that the attempt to ascribe to         Pleas in law and main arguments adduced in support:
local area networks a function which is peculiar to
telecommunications is based on an excessively broad
interpretation of the concept of telecommunications. In its         The applicant contests the revocation of certain binding
view, the chief characteristic of telecommunications                tariff information concerning various machines having the
equipment is that it enables data to be transmitted over            functions of commutators and intended for use in local
unlimited distances; consequently, it is radically different        area networks.
from that used in local area networks. Moreover, that
difference in terms of distance is directly linked to a             The pleas in law and main arguments are the same as
functional difference. Transmissions within a local area            Case T-133/98 Hewlett Packard France v. Commission.
network are extremely rapid; such rapidity is technically
possible over short distances only. With long-distance
telecommunications, by contrast, the maximum speed of
transmission is very much slower.
The applicant further claims that the equipment in                  Action brought on 7 September 1998 by the
question simultaneously fulfils the three conditions which,         Amministrazione Autonoma dei Monopoli di Stato against
according to Note 5(B) of Chapter 84, must be met in                       the Commission of the European Communities
order for a unit to be regarded as forming part of a
complete system, and that it thus falls, in accordance with                               (Case T-139/98)
Note 5(C), within the scope of heading No 84.71: it                                        (98/C 358/34)
constitutes equipment of the type used exclusively in
automatic data processing systems, is connectable to the
central processing unit through the local area network or                          (Language of the case: Italian)
networks and is also able to accept data in a form which
can be used by the system.                                          An action against the Commission of the European
                                                                    Communities was brought before the Court of First
                                                                    Instance of the European Communities on 7 September
                                                                    1998 by the Amministrazione Autonoma dei Monopoli di
                                                                    Stato (Autonomous Administration of State Monopolies),
                                                                    represented by Pier Giorgio Ferri and Danilo Del Gaizo,
                                                                    of the Avvocatura Generale dello Stato, with an address
Action brought on 20 August 1998 by Hewlett Packard
                                                                    for service in Luxembourg at the Italian Embassy, 5 rue
Europe BV against the Commission of the European
                                                                    Marie-Adelaïde.
                         Communities
                       (Case T-134/98)
                                                                    The applicant claims that the Court should:
                        (98/C 358/33)
                                                                    Ð annul the contested decision, pursuant to the form of
               (Language of the case: French)                           order sought under Heading B (point 8 et seq.);
An action against the Commission of the European                    Ð in the alternative, annul that part of the decision
Communities was brought before the Court of First                       challenged in the remaining forms of order, and
Instance of the European Communities on 20 August                       accordingly reduce the scale of the fine imposed;
1998 by Hewlett Packard Europe BV, the registered office
of which is at Amstelveen (Netherlands), represented by
Fabrice Goguel and Anne Trager, of the Paris Bar, with an           Ð order the Commission to pay the costs.
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand-rue.                                           Pleas in law and main arguments adduced in support:
The applicant claims that the Court should:                         The applicant in the present case (the AAMS') is a body
                                                                    forming part of the Amministrazione Finanziaria dello
Ð annul Commission Decision 98/406/EC of 16 June                    Stato Italiano (Financial Administration of the Italian
    1998, published on pages 45 and 46 of the Official              State), which, in addition to performing various
    Journal of the European Communities of 23 June                  administrative functions, is also involved in the production
    1998, in so far as it requires the revocation of Binding        and wholesale distribution of processed tobacco products.
    Tariff Information Nos FR 12030199701394,                       Through the contested decision (1), the defendant cast
    12030199702134 and 12030199702135, which had                    doubt on the compatibility with Article 86 of the EC
    correctly classified the machines in issue under heading        Treaty of certain conduct by the applicant organisation in
    8471.80.10;                                                     relation to a number of clauses in the standard-form
                                                                    contract for the distribution of cigarettes of other
                                                                    manufacturing undertakings and in relation to certain
Ð order the Commission to pay all the costs.                        unilateral steps taken in regard to imported cigarettes and
 ---pagebreak--- C 358/18               EN                  Official Journal of the European Communities                                    21.11.98
distribution and sales organisations (2). According to the            refrains from taking when acting commercially as a
Commission, the measures with which it takes issue tend               producer or wholesale distributor of cigarettes.
to protect and reinforce the applicant's own position on
the market in cigarettes.
                                                                      (1) Commission Decision of 17 June 1998 concerning a procedure
                                                                          under Article 86 of the EC Treaty (IV/36.010-F3 Ð
                                                                          Amministrazione Autonoma dei Monopoli di Stato).
In support of its submissions, the applicant points in the            (2) Articles 2 and 3 of the above Decision.
first place to the absolute vagueness and inadequacy of the
factors which the Commission chose for the purpose of
distinguishing the Italian market from the remainder of
the European market. So far as concerns its dominant
position on the market for the wholesale distribution of
cigarettes, the applicant submits that, in order to
circumvent       its    alleged    hegemony,        Community
                                                                      Action brought on 9 September 1998 by Filippos Pierros
undertakings did not solely have the possibility of
                                                                           against Commission of the European Communities
establishing their own distribution network, since there
are on the Italian market other undertakings operating in                                      (Case T-141/98)
the sector for the distribution of similar categories of
                                                                                                (98/C 358/35)
product. Consequently, foreign undertakings have a real
possibility of utilising the numerous commercial operators
within the sector who are authorised by the fiscal
                                                                                       (Language of the case: Greek)
authorities to trade in other products subject to excise
duty and treated for administrative and accounting
purposes in the same way as processed tobacco.
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of First
With regard to distribution activity, the applicant submits           Instance of the European Communities on 9 September
that, following liberalisation, it operates within the                1998 by Filippos Pierros, resident in Athens, Greece,
distribution market on behalf of third parties to the extent          represented by Nikolaos Korogiannakis, of the Athens Bar,
to which it has space available in its warehouses exceeding           with an address for service in Luxembourg at the offices
the distributon requirements for its own products, since              of Brown Holding S.A., 310 route d'Esch, L-1471
development of its present distribution network does not              Luxembourg.
form part of its interests. With more particular regard to
the distribution contract, it must be pointed out that there
is no excess in the distribution capacity of AAMS in                  The applicant claims that the Court should:
relation to the requiremens of normal provision of the
market and that the refusal to negotiate individual clauses
with one or other producer is justified by the need not to            Ð annul Commission Decision DG XXIII/MaS (98)
assume divergent and particular obligations in regard to                   1009, asking the applicant to refund the sum of ECU
one producer which the applicant would be unable to                        24 000 on the basis that it was unduly paid in
guarantee to other producers within the context of its                     connection with the grant given by the Commission to
general     distribution     organisation.    Moreover,     the            the Parliamentary Intergroup for Cooperation with the
applicant's restricted storage capacity explains both the                  Countries of Eastern Europe for the purpose of
limit of 30 % on the potential introduction of additional                  organising the European Conference on Tourism held
quantities over those determined by consumption forecasts                  in Budapest on 11, 12 and 13 April 1991, as contrary
as the limits imposed on the introduction of new cigarette                 to Community law, in particular Articles 173 and 190
brands. So far as concerns the clause relating to the                      of the Treaty, on the ground that it infringes the duty
control of cigarettes, it should be borne in mind that the                 to state reasons for administrative measures and
applicant is entitled, and has the duty, to carry out such                 general principles of Community law (namely the right
controls on the products which it markets for the purpose                  to a hearing and the principles of good administration,
of ensuring that it does not infringe the rules applicable to              of diligence and of the protection of legitimate
the sector.                                                                expectations), and on the ground of misuse of powers;
Finally, the applicant challenges the accuracy of the                 Ð annul on the same grounds every administrative,
Commission's allegations of unilateral abusive practices                   judicial or enforcement measure which is consequent
(refusal to authorise increases in monthly quantities and                  or dependent upon that decision, in particular the
measures concerning both sales outlets and retail shops).                  debit note for ECU 24 000;
With particular regard to the problems concerning retail
shops, it must be pointed out that, in so far as adopted in
the exercise of public powers, this specific conduct could            Ð declare that any claim of the Commission in this
not have been evaluated within the scope of the procedure                  matter is time-barred by virtue of Article 4 of the
established under Council Regulation (EEC) No 17/62,                       applicant's declaration of 11 January 1991;
which concerns the applicant's activities exclusively in its
capacity as an undertaking. The rules on competition are
not directly applicable to the measures which the AAMS                Ð allow the applicant the opportunity to consult the file;