CELEX: C1995/101/26
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 14 February 1995 by SA Cimenteries CBR against the Commission of the European Communities (Case T-25/95)

No C 101 /10            EN                     Official Journal of the European Communities                                   22 . 4 . 95
The applicants claim that the Court should :                              Action brought on 14 February 1995 by SA Cimenteries
                                                                          CBR against the Commission of the European
                                                                                                  Communities
( 1 ) annul Commission Regulation (EC ) No 2791 /94 of
      16 November 1994 on the exceptional allocation of a                                       (Case T-25/95 )
      quantity additional to the tariff quota for imports of                                     ( 95/C 101/26 )
      bananas in 1994 as a result of tropical storm Debbie ( 1 )
      save for Article 1 ( 1 ) thereof;                                                  (Language of the case: French)
( 2 ) order the defendant to pay the costs .                              An action against the Commission of the European
                                                                          Communities was brought before the Court of First
                                                                          Instance of the European Communities on 14 February
Pleas in law and main arguments adduced in support:                       1995 by SA Cimenteries CBR, the head office of which is in
                                                                          Brussels, represented by Michel Waelbroeck, Alexandre
                                                                          Vandencasteele and Denis Waelbroeck, of the Brussels Bar,
The applicants, two German companies importing bananas,
                                                                          with an address for service in Luxembourg at the Chambers
contest the way in which the quantity additional to the tariff
                                                                          of Ernest Arendt, 8—10 Rue Mathias Hardt.
quota for that product in 1994 has been allocated by
Regulation ( EEC ) No 2791/94 .
                                                                          The applicant claims that the Court should:
That Regulation was enacted following the severe damage                   — annul Articles 1 , 4, 7, 8 , 9 and 10 of the Commission
caused by tropical storm Debbie on 10 September 1994 to                       Decision of 30 November 1994 relating to a procedure
the banana plantations in the Community regions of                            under Article 85 of the EC Treaty ( Cases IV/33.126 and
Martinique and Guadeloupe and in the ACP States of Saint                      33.322 — Cement), inasmuch as it is stated therein that
Lucia and Dominica . It is intended to avert the risk of a steep              CBR has participated in agreements or concerted
rise in prices in several Community regions which may result                  practices contrary to Article 85 of the EC Treaty and it
from that damage .                                                            has been fined in that regard,
The applicants maintain that there is no legal basis whatever             — in the alternative, annul or at least reduce the fines
for the introduction of the exceptional allocation scheme at                  imposed on the applicant in Articles 9 and 10 of the
issue . Whilst it is true that Article 16 ( 3 ) of Regulation (EEC )          Decision,
No 404/93 on the common organization of the market in
bananas constitutes a legal basis for an increase in the quotas           — order the Commission to pay the costs.
in question, regard should be had in that connection to the
allocation rules laid down in Article 19 ( 1 ) of that                    Pleas in law and main arguments adduced in support:
Regulation. Nor does Article 20 of Regulation ( EEC )
No 404/93 constitute a legal basis for the Regulation at                  The applicant pleads, first, procedural defects, inasmuch as
issue. First, the modification of the allocation rules does not           the contested decision :
involve an implementing provision within the meaning of
Article 20; and, second, that Article merely provides for a               — was taken without the applicant having been given
system for forecasting demand, in relation to which it refers,                access to the majority of the documents in the
as regards the procedure to be applied, to Article 27 of the                  Commission's file or to the findings of fact based on
basic Regulation. Lastly, Article 30 of the basic Regulation                  those documents which are contained in the Statement
is concerned merely with transitional measures to facilitate                  of Objections,
the adaptation of the former national market organizations
to the new common organization of the market;                             — is vitiated by the absence of a statement of reasons
consequently, the contested regulation cannot fall within its                 and/or by contradictory reasoning,
scope .
                                                                          — contains allegations against the applicant based on
                                                                              numerous documents prepared in various languages
Since Regulation ( EEC ) No 404/93 is thus incapable of                       without translations of those documents having been
constituting the legal basis for the regulation at issue,                     provided in the Statement of Objections, with the result
recourse must be had to Article 43 of the EC Treaty.                          that it was not until the Decision was adopted that
However, since that provision confers legislative powers                      the applicant was able to assess the precise significance
only on the Council, and since the subject-matter of the                      given to them, by means of translation, by the
Regulation at issue cannot be regarded as an implementing                     Commission,
measure, it has been enacted in breach of Article 43 , and also
of Articles 145 and 155 , of the Treaty.                                  — may be vitiated by a failure to comply with the
                                                                              procedural requirements for the adoption of decisions,
H OJ No L 296 , 17. 11 . 1994, p . 33 .                                       since the Commission acknowledges that it encountered
                                                                              a problem which warranted the renotification of the
                                                                              Decision but which it dealt with, without any
                                                                              explanation or justification whatever, at the stage of
                                                                              authentication of the Decision .
 ---pagebreak--- 22 . 4 . 95           | EN                   Official Journal of the European Communities                                  No C 101 /11
As regards the substance of the case, the applicant considers           (iii ) request the Court to make any measures of preliminary
that the contested Decision :                                                    enquiry that it may consider necessary.
— fails to show that it participated in an alleged agreement
      on non-transhipment to domestic markets,                          Pleas in law and main arguments adduced in support:
— further fails to show that it participated in any                     The applicant maintains, on the one hand, that the contested
      agreement or concerted practice relating to Greek                 decision has infringed the EC Treaty because :
      cement ,
                                                                        — the findings in the decision that the Applicant infringed
— further fails to show that the limited activities of the                    Article 85 ( 1 ) of the EC Treaty are erroneous, being
      White Cement Committee were capable of constituting a                    based on a materially incorrect appreciation of the facts
      restriction of competition within the meaning of                         and vitiated by manifest errors of assessment,
      Article 85 of the EC Treaty.
                                                                        — the analysis of the application of Article 85 ( 1 ) to
In the alternative, the applicant applies for the reduction or                 associations of undertakings in the decision is flawed by
annulment of the fines imposed on it, asserting that those                     errors of law and inadequate reasoning.
fines :
                                                                        It considers, on the other hand, that the Commission has
— result in discriminatory treatment of the undertakings                infringed the applicant's right to be heard in the
      allegedly party to the agreement on non-transhipment to           administrative proceedings under Regulations ( EEC )
      domestic markets,
                                                                        No 17/92 and ( EEC ) No 99/63 , by failing to give it a full
                                                                        copy of the Statement of Objections and full access to the
— are wrongly based on certain factors found to be                      file .
      aggravating,
— fail to take into consideration the mitigating factors
      relating specifically to the applicant,
— impose, in the white cement sector, a pecuniary sanction
      on the applicant in respect of conduct which it adopted,
      with the approval of the Commission, in another                   Action brought on 15 February 1995 by Fédération de
      agreemeent and which cannot, therefore, be regarded as            l'Industrie Cimentière Belge asbl against the Commission of
      constituting, in its case, wilful or negligent infringement                           the European Communities
      of Article 85 .                                                                             ( Case T-30/95 )
                                                                                                    ( 95/C 101/28 )
                                                                                          (Language of the case: French)
Action brought on 14 February 1995 by Cembureau —                       An action against the Commission of the European
Association Européenne du Ciment against the Commission                 Communities was brought before the Court of First
                  of the European Communities                           Instance of the European Communities on 15 February
                           (Case T-26/95 )                              1995 by Fédération de l'Industrie Cimentière Belge asbl, the
                            ( 95/C 101 /27                              head office of which is in Brussels ( Belgium ), represented by
                                                                        Onno W. Brouwer and Frédéric P. Louis, of the Brussels Bar,
                                                                        with an address for service in Luxembourg at the Chambers
                 (Language of the case: English)                        of M. Loesch, 11 Rue Goethe.
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that the Court should:
Instance of the European Communities on 14 February
1995 by Cembureau — Association Européenne du Ciment,                   — annul Articles 1 , 2, 5 , 8 and 9 of the Decision of the
represented by Julian Ellison with an address for service in                   Commission of 30 November 1994 relating to a
Luxembourg at the office of Aloyse May, 31 Grand Rue,                          proceeding under Article 85 of the EC Treaty ( Cases
L-2011 Luxembourg.                                                             IV/33.126 and 33.322 — Cement), inasmuch as
                                                                               Fédération de l'Industrie Cimentière Belge asbl is stated
The applicant claims that the Court should :                                   therein to have participated in agreements or concerted
                                                                               practices contrary to Article 85 of the EC Treaty and has
  (i ) annul the Commission's Decision in Cases IV/33.126                      been fined in that regard,
        and 33.322 — Cement, in so far as it affects
        Cembureau;                                                      — in the alternative, annul or reduce the fine imposed on
                                                                               the applicant by Article 9 ( 10 ) of the Decision,
 (ii) order the Commission to pay Cembureau's costs;
        and                                                             — order the Commission to pay the costs .