CELEX: C2004/059/39
Language: en
Date: 2004-03-06 00:00:00
Title: Case T-410/03: Action brought on 18 December 2003 by Hoechst AG against the Commission of the European Communities

6.3.2004               EN                         Official Journal of the European Union                                            C 59/23
In this regard, she points out that the letter by which she was           Pleas in law and main arguments
notified of the contested decision bears the date of 20 January
2003, that is to say three days before the date on which the
oral test in question actually took place. That error was later           The applicant was an official of the European Parliament when
corrected.                                                                he was transferred to OHIM on 1st October 1998. By the
                                                                          contested decision, OHIM informed the applicant of his
                                                                          number of merit points for the 2002 promotion year. When
In support of her claims, the applicant pleads:                           calculating those points, OHIM limited the applicant’s length
                                                                          of service in the grade to five years and as a result did not take
—     breach of the notice of the competition in question and a           account of the period from 1 January 1991 to 31 October
      defect in the procedure, in that the selection board could          1993.
      not evaluate her on her oral abilities until it had
      interviewed her;
                                                                          In support of his claim for annulment, the applicant submits,
                                                                          firstly, that there was a breach of Article 1 of Decision ADM
—     misuse of powers given that the selection board was                 02-39 rev of OHIM concerning the career and promotion of
      biased;                                                             officials and temporary staff, and of the principles of legality,
                                                                          legal certainty and equal treatment. He submits, furthermore,
—     breach of the principle of equal treatment; and                     that that there was a breach of the Staff Regulations in so far
                                                                          as the principles applicable to transfers between institutions
—     breach of the requirement to state grounds for a decision.          were not adhered to and that the applicant’s legitimate
                                                                          expectations when he accepted the transfer were not upheld.
                                                                          The applicant submits, finally, that there was a breach of the
(1) [2002] ECR-SC I-A-37, II-161.                                         requirement to state the reasons for the disputed decision and
                                                                          of the principle of proportionality.
Action brought on 11 December 2003 by Manuel Simões                       Action brought on 18 December 2003 by Hoechst AG
dos Santos against the Office for Harmonisation in the                      against the Commission of the European Communities
                         Internal Market
                                                                                                   (Case T-410/03)
                        (Case T-409/03)
                                                                                                    (2004/C 59/39)
                          (2004/C 59/38)
                                                                                             (Language of the case: German)
                   (Language of the case: French)
                                                                          An action against the Commission of the European Communi-
An action against the Office for Harmonisation in the Internal            ties was brought before the Court of Justice of the European
Market (OHIM) was brought before the Court of First Instance              Communities on 18 December 2003 by Hoechst AG, Frankfurt
of the European Communities on 11 December 2003 by                        am Main (Germany), represented by M. Klusmann and V. Turn-
Manuel Simões dos Santos, resident in Alicante (Spain),                   er, lawyers.
represented by Antonio Creus Carreras, lawyer.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —      annul the contested decision in so far as it concerns the
—     annul the implied decision of the Appointing Authority                     applicant;
      rejecting the complaint made by the applicant and the
      decision of 14 February 2003 fixing his initial number of           —      in the alternative, make an appropriate reduction in the
      merit points for the 2002 promotion year in so far as it                   amount of the fine imposed on the applicant in the
      limits his period of service in the European Parliament;                   contested decision;
—     order the defendant to pay all the costs of the case.               —      order the defendant to pay the costs.
 ---pagebreak--- C 59/24                EN                          Official Journal of the European Union                                           6.3.2004
Pleas in law and main arguments                                            Finally, the applicant complains that owing to the Com-
                                                                           mission’s lack of activity in the first stage of the procedure, the
                                                                           length of the procedure was unreasonable within the meaning
                                                                           of Article 6(1) ECHR and complains that the order to desist is
By Decision K(2003) 3426 of 1 October 2003 the Commission                  unlawful because the relevant business has been sold in the
found that the applicant and four other undertakings had                   meantime.
infringed Article 81(1) EC by virtue of their participation in a
complex, single and continuing agreement and in concerted
practices in the sorbate sector, through which they agreed
inter alia target prices. A fine of EUR 99 million was imposed
on the applicant.
The applicant challenges the decision and claims that the
Commission infringed the principle of good administration by
unlawfully giving preferential treatment to another undertak-              Action brought on 15 December 2003 by Shandong
ing in the administrative procedure. Both undertakings cooper-             Reipu Biochemicals Co. Ltd. against the Council of the
ated with the Commission at the end of 1998 and the applicant                                      European Union
claims that the other undertaking has been given an unlawful
advantage.
                                                                                                   (Case T-413/03)
The applicant complains that there were irregularities in the
conduct of the procedure at that time and also that despite its                                     (2004/C 59/40)
requests the Commission has refused to grant it access to
Commission documents. The Commission has already allowed
access to some internal documents in the context of general                                   (Language of the case: English)
inspection of documents and it can therefore no longer rely
on general confidentiality of internal documents connected
therewith. Furthermore, a complete version of the decision, or
a version which is sufficiently comprehensible, has not been
supplied to the applicant, information in the first part of the            An action against the Council of the European Union was
decision having been blanked out without justification, thus               brought before the Court of First Instance of the European
making it impossible inter alia to comprehend how the fines                Communities on 15 December 2003 by Shandong Reipu
were calculated.                                                           Biochemicals Co. Ltd., Shandong, (People’s Republic of China),
                                                                           represented by O. Prost, lawyer.
Moreover, the applicant claims that there were errors of
assessment and of law in connection with the fixing of the                 The applicant claims that the Court should:
fine. It complains that the basic amount is disproportionate
because it has not been treated in the same way as other                   —     annul Article 1 of Council Regulation (EC) No 1656/
participants in the procedure. It also complains that the                        2003 of 11 September 2003 imposing a definitive anti-
Commission wrongly inferred that its actions had detrimental                     dumping duty and collecting definitely the provisional
consequences and that ‘senior management’ participated in the                    duty imposed on imports of para-cresol originating in
cartel. The applicant submits that the basic amounts of the                      the People’s Republic of China (OJ 2003 L 234, p. 1) as
fine calculated according to groups are wrong because, in                        long as it imposes a 12,3 % duty on imports of products
particular, the additional cartel activities of the Japanese                     manufactured by the applicant;
manufacturers have not been taken into account. The applicant
also challenges, on the merits, the further additional fine of
30 % for its alleged position as ‘ringleader’ and also the further         —     ask the Council to pay the costs.
addition of 50 % for recidivism. With regard to appraisal of its
cooperation, the applicant complains that the Commission
wrongly failed to classify it as the first cooperating undertaking.
                                                                           Pleas in law and main arguments
Moreover, the applicant complains that a previous penalty
imposed in the United States in regard to the same matter was
not taken into account and relies in that regard on the principle          The applicant is established in the People’s Republic of China
of ne bis in idem which also applies in relationships with non-            and produces and exports para-cresol to the European Union.
member countries. Although that principle does not preclude                The applicant contests Regulation (EC) No 1656/2003 which
further proceedings, it requires prior penalties to be taken into          imposes a definitive duty on imports of para-cresol, originating
account.                                                                   in the People’s Republic of China.