CELEX: C2000/149/73
Language: en
Date: 2000-05-27 00:00:00
Title: Case T-64/00: Action brought on 16 March 2000 by Continental and Overseas Investments NV against the Commission of the European Communities

C 149/38               EN                       Official Journal of the European Communities                                      27.5.2000
The applicants submit that, in the consultation procedure, the             — Order the Commission to pay the costs.
Commission failed to take any account of the comments
on the abovementioned publications made by the sectors
concerned.                                                                 Pleas in law and main arguments
First plea in law: lack of competence/ ultra vires/ breach by the          The present proceedings are directed against the final decision
Commission of essential procedural requirements:                           contained in the letter of 22 December 1999, reference
                                                                           D17587, in which the Commission rejected complaint
                                                                           No IV/37332 Compagnia Portuale Pietro Chiesa v Italian
With regard to vertical agreements, Articles 2, 3, 4 and 5 of              Republic, Autorità Portuale del Porto di Genova and Compag-
the contested regulation introduce ‘a posteriori control’. This            nia Unica Lavoratori Merci Varie (C.U.L.M.V.), relating to an
control has consequences solely for the future. In addition,               infringement of Article 86 of the EC Treaty in conjunction
abuses attributable to economic dependence are not taken into              with Article 82 thereof, deriving from an alleged abuse by
consideration.                                                             C.U.L.M.V. of its dominant position, resulting from its de facto
                                                                           monopoly in the Port of Genoa as regards the conduct of port
The abolition of the automatic nullity of agreements prohibited            operations and the supply of port labour.
under Article 81 EC constitutes an infringement of the Treaty.
The new rules create conditions under which the entire free                In support of its claim, the applicant alleges, first, a failure to
market can, with impunity, be restricted to approved dealers               undertake investigative measures, in so far as the defendant
and supplies to non-approved dealers can be excluded.                      did not commence proceedings under Council Regulation
                                                                           No 17/62 either against C.U.L.M.V. or against the Genoa Port
                                                                           Authority. The applicant alleges in that regard that the
Second plea in law: the consultations which preceded the                   contested practices derive:
adoption of the regulation were not conducted in a manner
consistent with the spirit of the Treaty:                                  — From the conduct of C.U.L.M.V. which, carrying on
                                                                               business simultaneously as a terminal operator and an
The new rules have been presented by the Commission as                         undertaking supplying labour, hampers access to those
constituting no more than a modernisation of procedures,                       markets by competitors. The Port Authority is aware of
whereas the spirit, if not the letter, of the Treaty has been                  this situation.
ignored. The scope of the modernisation programme has,
moreover, been considered only from the point of view of                   — From administrative measures and/or failure to act by the
facilitating the tasks of the European Commission.                             Port Authority, which the applicant criticises as being
                                                                               contrary to the Community competition rules.
                                                                           The applicant also alleges breach of the principle audi alterem
                                                                           partem and submits that the statement of the reasons for the
                                                                           contested decision is contradictory.
Action brought on 17 March 2000 by Compagnia Portuale
Pietro Chiesa v Commission of the European Communi-
                                ties
                                                                           Action brought on 16 March 2000 by Continental and
                          (Case T-59/00)                                   Overseas Investments NV against the Commission of the
                                                                                                European Communities
                         (2000/C 149/72)
                                                                                                     (Case T-64/00)
                    (Language of the case: Italian)                                                 (2000/C 149/73)
An action against the Commission of the European Communi-                                      (Language of the case: Dutch)
ties was brought before the Court of First Instance on 17 March
2000 by Compagnia Portuale Pietro Chiesa, represented by
Giuseppe Michele Giacomini and Barbara Della Barile, of the                An action against the Commission of the European Communi-
Genoa Bar.                                                                 ties was brought before the Court of First Instance of the
                                                                           European Communities on 16 March 2000 by Continental
                                                                           and Overseas Investments NV (formerly ‘Jubertrade NV’),
The applicant claims that the Court of First Instance should:              established in Antwerp, represented by Y. Van Gerven and J.
                                                                           Bernaerts, of the Brussels Bar, with an address for service in
— Annul the letter of 22 December 1999, reference D17587,                  Luxembourg at the Chambers of M. Loesch, of the Luxembourg
     of the European Commission, Competition DG;                           Bar, 11 Rue Goethe.
 ---pagebreak--- 27.5.2000               EN                    Official Journal of the European Communities                                       C 149/39
The applicant claims that the Court should:                              In that connection it raises the following pleas:
                                                                         — Infringement of the rights of the defence, of Articles 872
                                                                              and 906 of Regulation No 2454/93, the principles of
Principally:                                                                  procedural equality and of sound administration. The
                                                                              Commission omitted, when it was minded to depart from
                                                                              the view taken by the customs authority, to have the
— order the Commission to produce all documents on                            applicant heard by the national authority. It did not arrange
    which it based the contested decision, together with all                  for the applicant to receive the documents and decisions
    documents, including administrative items, which have a                   on which its complaints concerning waiver of post-
    bearing on this matter, comprising for example the                        clearance recovery and/or remittance are based. By not
    documents which prompted the Commission in 1993 to                        making available documents which could have been of use
    organise a mission to Turkey to conduct an investigation                  to the applicant’s arguments the Commission infringed the
    into the issue of ATR certificates for television sets, the               principle of procedural equality.
    results of that mission and the reports drawn up concern-
    ing it, any correspondence between the Commission and                — Infringement of Article 5(2) of Regulation No 1697/79.
    the Member States as well as between the Commission and                   The Commission was wrong to adjudge that the criteria
    the Turkish authorities on this subject etc, for examination              for the application of that article were not met.
    by the Court and production to the applicant so as to
    enable it to investigate whether it can use those documents          — Infringement of the first paragraph of Article 13 of
    in further support of this application and the pleas and                  Regulation No 1430/79. The Commission was wrong to
    arguments raised therein;                                                 take the view that the situation in the present case did not
                                                                              constitute ‘special circumstances’ within the meaning of
                                                                              that article.
— annul the decision of the Commission of the European
    Communities of 14 December 1999 rejecting the request                — Infringement of the principle that decisions must be
    by the Kingdom of Belgium to refrain in favour of the                     supported by a statement of the reasons on which they are
    applicant from the post-clearance recovery of import                      based (Article 253 EC).
    duties or to remit them on imports of television sets from
    Turkey in the period from 8 October 1991 to 28 May                   — In the alternative, infringement of the principle of pro-
    1993 inclusive (Decision C(1999) 4419 fin);                               portionality and of Articles 2 and 3 of the Additional
                                                                              Protocol to the EC-Turkey Association Agreement.
— order the Commission to pay the costs;
In the alternative, if the decision is not annulled:
— none the less order the Commission to pay the costs (its               Action brought on 23 March 2000 by NKK Corporation
    own and the applicant’s);                                              against the Commission of the European Communities
                                                                                                   (Case T-67/00)
In the further alternative:
                                                                                                  (2000/C 149/74)
— order the Commission to pay its own costs.
                                                                                            (Language of the case: English)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 23 March 2000 by NKK Corpor-
                                                                         ation (Tokyo), represented by Martin Smith and Conor Magui-
                                                                         re, Solicitors, Simmons & Simmons, Brussels.
The applicant’s action under the fourth paragraph of Article
230 of the EC Treaty is for annulment of the Commission’s                The applicant claims that the Court should:
decision of 14 December 1999 rejecting the request by the
Kingdom of Belgium to refrain in favour of the applicant from            — pursuant to Article 230 EC, review the legality of the
the post-clearance recovery of import duties or to remit them                 contested decision and, in so far as it relates to the
on imports of television sets from Turkey in the period from                  applicant, annul it pursuant to Article 231 EC, in the
8 October 1991 to 28 May 1993 inclusive.                                      alternative;