CELEX: C2000/247/13
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-217/00 P: Appeal brought on 31 May 2000 by Buzzi Unicem SpA ("Unicem") against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 between Cimenteries CBR SA and Others and the Commission of the European Communities

C 247/10               EN                   Official Journal of the European Communities                                          26.8.2000
      irrelevant any document which did not have an objective          B.    Pleas in law relating to the reduction of
      link with the charges laid against the appellant or                    the fine
      which did not counter directly the documentary evidence
      adduced by the Commission and, in any event, by the              1.     Error in law as regards failure to change the fine where
      manner in which the Court of First Instance ascertained          the Commission measure is annulled in part.
      whether the rights of defence had in fact been infringed
      on account of the improper access to the file during the         2.     Infringement of Article 15(2) of Regulation No 17 and
      administrative procedure.                                        inadequacy of the statement of reasons so far as concerns
                                                                       assessment of the gravity of the infringement with which
                                                                       Italcementi is charged.
(iii) Infringement of the rights of defence as regards access to
      the file entails the annulment of the decision at issue
      irrespective of whether the undertaking which stands             3.     Infringement of Article 15(2) of Regulation No 17 so far
      accused is able to show that access during the administrat-      as concerns assessment of the duration of the infringement
      ive procedure might have led the Commission to arrive            with which Italcementi is charged.
      at a different conclusion.
                                                                       (1) Commission Decision 94/815/EC of 30 November 1994 relating
                                                                           to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
2.     Infringement of the rights of the defence, inadequate               — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).
statement of reasons and contradiction with an earlier decision
regarding the decision dropping the national objections com-
municated by letter of 27 November 1993.
B.    Substance
                                                                       Appeal brought on 31 May 2000 by Buzzi Unicem SpA
                                                                       (‘Unicem’) against the judgment delivered on 15 March
1.     Error in law and contradiction with another part of the         2000 by the Court of First Instance of the European
statement of reasons as regards assessment of the validity of          Communities (Fourth Chamber, Extended Composition)
the agreement on contracts and agreements signed in April              in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95,
1987 with Calcestruzzi.                                                T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95,
                                                                       T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95,
                                                                       T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95,
                                                                       T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95,
Pleas in law relating to the cancellation or reduction of              T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95,
the fine                                                               T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and
                                                                       T-104/95 between Cimenteries CBR SA and Others and
                                                                              the Commission of the European Communities
                                                                                               (Case C-217/00 P)
A.    Pleas in law relating to the cancellation
      of the fine
                                                                                                (2000/C 247/13)
1.     Misapplication of Community law and case-law and                An appeal against the judgment delivered on 15 March by the
infringement of Article 253 of the Treaty as regards assessment        Court of First Instance of the European Communities (Fourth
of the inadequacy of the statement of reasons for the decision         Chamber, Extended Composition) in Joined Cases T-25/95,
at issue so far as concerns the fine.                                  T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95,
                                                                       T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95,
                                                                       T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95,
2.     Infringement of Article 15(2) of Regulation No 17,              T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95,
breach of the principle of proportionality, manifest error of          T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95,
assessment and inadequate statement of reasons so far as               T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95,
concerns the sales taken into account when calculating the             T-87/95, T-88/95, T-103/95 and T-104/95 between Cimente-
fines.                                                                 ries CBR SA and Others and the Commission of the European
                                                                       Communities, was brought before the Court of Justice of the
                                                                       European Communities on 31 May 2000 by Buzzi Unicem
3.     Misapplication of Community law, breach of the prin-            SpA, whose principal office is in Turin (Italy), represented by
ciples of fairness, proportionality and non-discrimination and         Cristoforo Osti, of the Rome Bar, and Alessandra Prastaro, of
inadequate statement of reasons as regards assessment of the           the Lecce Bar, with an address for service in Luxembourg at
criteria used when determining the fines.                              the Chambers of Marc Loesch, 11 Rue Goethe.
 ---pagebreak--- 26.8.2000              EN                    Official Journal of the European Communities                                       C 247/11
The Appellant claims that the Court should:                             —     the documents produced to the Court of First Instance
                                                                              and adduced by the Commission as direct proof of
Mainly                                                                        the existence of the Cembureau Agreement do not
                                                                              demonstrate in any way that Unicem participated in that
1.    set aside the judgment of 15 March 2000 by the Court of                 agreement;
      First Instance of the European Communities (Fourth
      Chamber, Extended Composition) in Case T-50/95                    —     both the Commission and the Court of First Instance
      Unicem v Commission                                                     were wrong to refer to a ‘single agreement’, since such an
                                                                              expression presupposes uninterrupted and continuous
2.    accordingly, annul the Commission’s decision of                         conduct.
      30 November 1994 (1)
3.    order the Commission to pay the costs.                            So far as concerns the legality of the regular exchange of price
                                                                        information, the appellant challenges the grounds of the
                                                                        judgment of the Court of First Instance on the grounds that
In the alternative                                                      they are illogical, erroneous and circular.
Should the Court of Justice decide not to set the judgment of
the Court of First Instance aside, reduce the fine                      So far as concerns the agreement relating to the ETF (herein-
                                                                        after ‘the ETF’), the judgment of the Court of First Instance is
                                                                        vitiated by an inadequate statement of reasons concerning
In any event                                                            Unicem’s participation in and accession to the agreement
                                                                        setting up the ETF. The appellant claims that the reasoning of
Make any other order which it may deem appropriate or just.             the Court of First Instance concerning the infringement of the
                                                                        rights of the defence by the Commission when it broadened
                                                                        the charges set out in the SO and failed to forward to the
Pleas and main arguments                                                appellant a revised SO should be disregarded. Moreover, the
                                                                        Court of First Instance committed a manifest error of assess-
                                                                        ment with regard to the commencement of Unicem’s alleged
Error in law inasmuch as it disregarded the objections raised
                                                                        participation in the ETF.
by Unicem relating to the finding of infringement of the rights
of the defence as a result of the failure to grant access, during
the administrative procedure, to substantial parts of the               So far as concerns the measures to defend the Italian market,
documents which formed part of the investigation file.                  the judgment of the Court of First Instance is vitiated by an
                                                                        error of assessment and misapplication of the law with regard
Failure to specify the persons to whom the objections in the            to the decision to drop the national objections. Regarding
Statement of Objections (SO) were addressed prevented the               Unicem’s participation in the concerted practices designed to
appellant from ascertaining the scope and content of the                withdraw Calcestruzzi as a customer from the Greek pro-
objections raised against it. The Court of First Instanced was          ducers, and from Titan in particular, the appellant contends
wrong to confirm the Commission’s finding that the claimants            that the Court of First Instance should have challenged the
should have ‘deduced’ what it was they were accused of from             probative value of the documents used by the Commission.
the wording of certain phrases in the SO.
The excessive length of proceedings before the Court of First           The appellant is of the view that the reasoning of the Court of
Instance is an infringement of Article 6(1) of the European             First Instance is vitiated inasmuch as it finds there to be a link
Convention on Human Rights.                                             between the Calcestruzzi agreements and the ETF. It also
                                                                        submits that the Court of First Instance was wrong in its
                                                                        conclusion that the measures to defend the domestic market
The Court of First Instance disregarded Unicem’s complaints             were part of the ETF agreement which in its turn was held to
relating to: breach of the principle of equal treatment as              be part of the single Cembureau agreement.
between Unicem itself and other Italian undertakings in similar
situations; breach of the rights of defence on account of the
excessive length of the administrative procedure and of the             So far as concerns the fines, the appellant contests the
Commission’s having based its own arguments on statements               judgment of the Court of First Instance on the following
made by the parties during the procedure contrary to the                grounds:
principle of ‘non-self-incrimination’.
                                                                        —     infringement of Article 190 of the Treaty, Article 15(2)
So far as concerns the Cembureau Agreement, the appellant
                                                                              of Regulation No 17 and the principle of equal treatment
claims that:
                                                                              and proportionality;
—     the Court of First Instance did not properly assess the
      information which prompted the Commission to provide              —     manifest error in that the Court of First Instance imposed
      contradictory reasons for its definition of the relevant                a single fine for the group of infringements found on the
      market;                                                                 grey cement market;
 ---pagebreak--- C 247/12               EN                       Official Journal of the European Communities                                      26.8.2000
—     manifest error in the assessment of the respective                         (ii) and/or annul, or at least reduce, the fine imposed on
      responsibilities in the infringement relating to the Cembu-                      Cementir;
      reau single agreement;
—     misassessment of mitigating and aggravating circum-                  —     in the alternative, annul the contested judgment in whole
      stances;                                                                   or in part and refer the matter back to the Court of First
                                                                                 Instance for a ruling on the merits in the light of
                                                                                 directions provided by the Court;
—     error in the calculation of the fines on account of the
      erroneous calculation of the duration of the infringement;
                                                                           —     order the Commission to pay the costs of the present
—     manifest error in respect of the turnover for the preceding                proceedings and the proceedings before the Court of First
      year;                                                                      Instance in Case T-87/95.
—     error in the method used to calculate the fine (fixing of
      fines in ecu and choice of conversion rate).
                                                                           Pleas in law and main arguments
(1) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).              The judgment of the Court of First Instance is vitiated by
                                                                           erroneous application of Community law and infringement of
                                                                           the rights of the defence arising from the impossibility of
                                                                           obtaining access to all the documents contained in the
                                                                           Commission’s file during the administrative procedure.
                                                                           The appellant argues that the legal conclusions of the Court of
                                                                           First Instance concerning the meetings of the Head Delegates
Appeal brought on 31 May 2000 by Cementir — Cemen-
                                                                           of Cembureau lack a coherent basis in law and logic and reveal
terie del Tirreno SpA against the judgment delivered on
                                                                           a distortion of essential evidence. The Court of First Instance
15 March 2000 by the Court of First Instance of the
                                                                           did not carry out an accurate assessment of the specific
European Communities in Joined Cases T-25/95, T-36/95,
                                                                           position of Cementir, and thus arrived at a legal qualification
T-30/32/95, T-34-39/95, T-42-46/95, T-48/95, T-50-65/95,
                                                                           of that company’s conduct devoid of all foundation, conflicting
T-68-71/95, T-87-88/95 and T-103-104/95 between
                                                                           with the principles of the burden of proof and the presumption
Cimenteries CBR and Others and the Commission of the
                                                                           of innocence, and defective in its statement of reasons.
                     European Communities
                        (Case C-219/00 P)                                  Concerning access to the file relating to the existence of the
                                                                           Cembureau agreement, Cementir maintains that the Court of
                         (2000/C 247/14)                                   First Instance was wrong to hold that the failure to grant access
                                                                           to certain documents, specified by the appellant following
                                                                           measures of organisation by the Court of First Instance, did
An appeal against the judgment delivered on 15 March 2000                  not constitute an infringement of the appellant’s defence
by the Court of First Instance of the European Communities in              rights.
Joined Cases T-25/95, T-36/95, T-30/32/95, T-34-39/95,
T-42-46/95, T-48/95, T-50-65/95, T-68-71/95, T-87-88/95
and T-103-104/95 between Cimenteries CBR and Others and
                                                                           Concerning the exchange of price information during the
the Commission of the European Communities was brought
                                                                           Head Delegates’ meetings, the appellant maintains that the
before the Court of Justice of the European Communities on
                                                                           hypothesis by the Court of First Instance, according to which
31 May 2000 by Cementir — Cementerie del Tirreno SpA,
                                                                           price information made it possible to compare existing price
with its registered office in Rome (Italy), represented by
                                                                           levels on the various national markets, is without foundation.
Antonio Tizzano, Gian Michele Roberti and Paola Criscuolo
                                                                           An exchange taking place in those circumstances could not in
Gaito, of the Naples Bar, with an address for service in Belgium
                                                                           any way reduce market uncertainties and could not therefore
at the Chambers of Antonio Tizzano, Place du Grand Sablon
                                                                           have contributed in any way to the drawing up or implemen-
36, 1000 Brussels.
                                                                           tation of the alleged Cembureau agreement. Seen in that light,
                                                                           the exchange could not be regarded as incompatible with
The appellant claims that the Court should:                                Article 81 EC (ex Article 85).
—     annul the contested Judgment in whole or in part, and
      accordingly:                                                         With reference to the concerted practice alleged in
                                                                           Article 4(3)(a) of the decision, Cementir maintains that there is
      (i)   declare Commission Decision 94/8155/EC of                      no evidence to indicate that it participated. The assessments of
            30 November 1994 (1) (Cases 1V/33.126 and                      the Court of First Instance on that point therefore lack adequate
            33.322 Cement) wholly or partially void;                       reasoning.