CELEX: C2000/247/12
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-213/00 P: Appeal brought on 30 May 2000 by Italcementi SpA 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 247/8                EN                       Official Journal of the European Communities                                       26.8.2000
(d) The Court of First Instance’s judgment is also vitiated by                   (iii) order the Commission to pay the costs.
      a lack of reasoning and failure to respond to arguments
      of the Appellant.
                                                                           Pleas in law and main arguments
(1) OJ C 101 of 22.4.1995, pp 10-20; C 119 of 13.5.1995, pp 13-            —     Error of law inasmuch as the judgment under appeal
    26; C 137 of 3.6.1995, pp 23-28, 33 and 34, and C 208 of                     finds that the consultation with the Advisory Committee
    12.8.1995, pp 26 and 27.                                                     on Restrictive Practices and Abuses of Dominant Pos-
(2) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
                                                                                 itions was properly conducted: the case-law of the Court
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).                    of Justice requires that the Advisory Committee should
                                                                                 be consulted at least orally on the amount of the fines
                                                                                 envisaged.
                                                                           —     Manifest error of assessment in so far as the judgment
                                                                                 under appeal finds that Compagnie des Ciments Belges
                                                                                 was under the control of Ciments Français at the time of
                                                                                 the infringement and inasmuch as the turnover of that
                                                                                 subsidiary was not excluded from the basis of assessment
                                                                                 on which the fine imposed on Ciments Français was
                                                                                 calculated.
Appeal brought on 26 May 2000 by Ciments Français S.A.                     —     Infringement of the principle of proportionality inasmuch
against the judgment delivered on 15 March 2000 by the                           as the judgment under appeal does not reduce the amount
Court of First Instance of the European Communities                              of the fine imposed on Ciments Français in proportion to
(Fourth Chamber, Extended Composition) in Case T-39/95                           the complaints against Ciments Français which were
Ciments Français S.A. v Commission of the European                               annulled by the Court of First Instance.
                           Communities
                                                                           —     Error of law inasmuch as the judgment under appeal
                                                                                 states that the Commission was entitled to base itself on
                        (Case C-211/00 P)                                        the turnover for 1992 for the purpose of calculating the
                                                                                 fine imposed on Ciments Français: under Article 15(2) of
                         (2000/C 247/11)                                         Regulation No 17/62, the turnover which is to serve as
                                                                                 the basis for calculation of the fine is in principle that of
                                                                                 the business year preceding adoption of the decision. The
An appeal has been brought before the Court of Justice of the                    Court of First Instance departed from that interpretation
European Communities on 26 May 2000 by Ciments Français                          and failed to give reasons for so doing.
S.A., represented by Antoine Winckler, with an address for
service in Luxembourg at the Chambers of Elvinger & Hoss,
15 Côte d’Eich, against the judgment delivered on 15 March
2000 by the Court of First Instance of the European Communi-
ties (Fourth Chamber, Extended Composition) in Case
T-39/95 Ciments Français S.A. v Commission of the European
Communities.
                                                                           Appeal brought on 30 May 2000 by Italcementi SpA
The appellant claims that the Court should:                                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
—     Annul in part, pursuant to Article 225 EC and Article 54             T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,
      of the EC Statute of the Court of Justice, the judgment              T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
      delivered on 15 March 2000 by the Court of First Instance            T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
      in Case T-39/95 Ciments Français S.A. v Commission of                T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,
      the European Communities;                                            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,
—     grant the forms of order sought by Ciments Français at               T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
      first instance, namely:                                              between Cimenteries CBR SA and Others and the Com-
                                                                                       mission of the European Communities
      (i)    annul, pursuant to Article 230 EC, the Commission
             decision of 30 November 1994 relating to a pro-                                       (Case C-213/00 P)
             ceeding under [Article 81 EC] in Cases IV/33.126
             and 33.322;
                                                                                                    (2000/C 247/12)
      (ii) in the alternative, reduce, pursuant to Article 229
             EC and Article 17 of Regulation No 17/62, the fine            An appeal against the judgment delivered on 15 March by the
             imposed on Ciments Français; and                              Court of First Instance of the European Communities (Fourth
 ---pagebreak--- 26.8.2000                EN                    Official Journal of the European Communities                                          C 247/9
Chamber, Extended Composition) in Joined Cases T-25/95,                         —     in so far as the Court of First Instance endorsed the
T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95,                                 method adopted by the Commission when imposing
T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95,                                 the fine on Italcementi;
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,
                                                                                —     in so far as the Court of First Instance took the view
T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95,
                                                                                      that the fact that Italcementi’s participation in the
T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95,
                                                                                      ECEC and in some aspects of the exchanges of
T-87/95, T-88/95, T-103/95 and T-104/95 between Cimente-
                                                                                      information was not contrary to Article 85(1) of the
ries CBR SA and Others and the Commission of the European
                                                                                      Treaty, and the consequent annulment of part of
Communities, was brought before the Court of Justice of the
                                                                                      Article 2 and the whole of Article 5 of the decision
European Communities on 30 May 2000 by Italcementi SpA,
                                                                                      at issue did not entail a proportional reduction of
represented by Cesare Lanciani, of the Milan Bar, Alberto
                                                                                      the fine imposed by Article 9 of the decision at issue;
Predieri, of the Florence Bar, Mario Siragusa, of the Rome Bar,
Francesca Maria Moretti, of the Venice Bar, and Matteo Beretta,
of the Bergamo Bar, with an address for service in Luxembourg                   —     in so far as the Court of First Instance considered
at the Chambers of Elvinger, Hoss & Prussen, 2 Place Winston                          the infringement committed by the appellant to be
Churchill.                                                                            serious;
The Appellant claims that the Court should:                                     —     in so far as the Court of First Instance concluded
                                                                                      that the appellant’s participation lasted until the end
1.    mainly, set aside the judgment in whole or in part:                             of April 1992.
      —     in so far as the Court of First Instance misapplied in
                                                                          3.    In any event, annul the relevant parts of the Commission
            respect of Italcementi the principles of infringement
                                                                                decision should it uphold the present appeal.
            of the rights of defence in relation to failure to grant
            full access during the administrative procedure to
            the case-file;                                                4.    Reduce the fine by the amount it may deem appropriate.
      —     in so far as the Court of First Instance misapplied in        5.    Refer the case back to the Court of First Instance should
            respect of Italcementi the principles of infringement               it decide that the nature of the case, in whole or in part,
            of the rights of defence in relation to failure to                  does not make it possible for the Court of Justice to give
            communicate beforehand the decision to drop                         a final decision on the dispute.
            objections.
2.    in the alternative, set aside the judgment in part:                 6.    Order the Commission to pay the costs of the proceedings
                                                                                at first instance and the appeal.
      —     in so far as the Court of First Instance did not find
            that the infringement of the rights of defence by
            the failure to communicate the decision to drop
            objections should result in the annulment of                  Pleas and main arguments
            Article 4(3)(b) of the decision at issue (1) and conse-
            quently in a proportionate reduction of the fine in
            view of the lesser duration of the infringement;              Pleas in law relating to the setting aside of the judgment
                                                                          and the annulment of the decision
      —     in so far as the Court of First Instance did not accept
            that there was a contradiction between the decision
            to drop objections and the decision at issue and did
            not therefore annul Article 4(3)(b) of the operative          A.    Procedure
            part, with all its implications so far as concerns the
            infringement and, therefore, also the fine;                   1.     Misapplication of Community law and infringement of
                                                                          the rights of defence as a result of being unable to gain access
      —     in so far as the Court of First Instance found that the       to all the documents contained in the Commission’s file during
            Commission was right to attribute to Italcementi an           the course of the administrative procedure:
            infringement of Article 85(1) of the Treaty on
            the ground that it participated in an agreement
                                                                          (i)   Infringement of the rights of defence as regards access to
            concerning contracts and arrangements with Cal-
                                                                                the file automatically entails annulment of the decision at
            cestruzzi, following the termination of the contract
            between Calcestruzzi and Titan and, in any event,                   issue.
            after the period 3 to 15 April 1987;
                                                                          (ii) The analysis carried out by the Court of First Instance is
      —     in so far as the Court of First Instance found that a               seriously flawed by erroneous assumptions going to the
            sufficient statement of reasons had been provided                   merits; it is moreover entirely arbitrary and unfounded
            for the decision at issue so far as concerns determi-               inasmuch as the Court of First Instance misapplied the
            nation of the fine imposed on the appellant;                        principle of direct evidence, having ruled out a priori as
 ---pagebreak--- 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.