CELEX: C1998/166/44
Language: en
Date: 1998-05-30 00:00:00
Title: Action brought on 11 March 1998 by Krupp Thyssen Stainless GmbH against the Commission of the European Communities (Case T-45/98)

30.5.98              EN                 Official Journal of the European Communities                                   C 166/17
brought before the Court of First Instance of the European         Ð alternatively, annul the fine imposed on the applicant
Communities on 15 December 1997 by JoaÄo Luís de                        by Article 2 of the decision together with Article 4 in
Sousa Abreu and Others, residing in Portugal, represented               conjunction with Article 1 of the decision;
by Cristina Ferreira, Francisco Espregueira Mendes, Teresa
Fonseca and Rui GuimaraÄes Lopes, of the Oporto Bar.               Ð in the further alternative, reduce the fine imposed on
                                                                        the applicant by Article 2 of the decision and annul
The applicants claim that the Court should:                             Article 4 in conjunction with Article 1 of the decision;
Ð declare the Council and the Commission jointly and               Ð order the defendant to pay the costs.
    severally liable, pursuant to Articles 215 and 178 of
    the EC Treaty, for the damage caused by virtue of the          Pleas in law and main arguments:
    transitional and training measures necessary in the
    sector to which the applicant belongs;
                                                                   By the contested decision, which is addressed inter alia to
                                                                   the applicant, the Commission found that, following a
Ð order the Council and the Commission jointly and
                                                                   meeting in Madrid in December 1993, the applicant,
    severally to pay ESC 3 126 768 by way of
                                                                   along with other European producers of stainless steel,
    compensation for the abovementioned damage,
                                                                   had infringed Article 65(1) of the ECSC Treaty by
    together with the interest accrued, at the rate of 10 %,
                                                                   modifying and by applying in a concerted fashion the
    as prescribed by law, from the date of the summons to
                                                                   reference values used to calculate the alloy surcharge (the
    the date on which payment is actually made;
                                                                   alloy surcharge formula') (Article 1 of the decision). In
                                                                   the Commission's view, that practice had been served to
Ð order the Council and the Commission to pay the                  bring about a price increase.
    costs.
                                                                   The applicant was fined ECU 8 100 000 on account of
Pleas in law and main arguments:                                   that infringement (Article 2 of the decision).
The pleas in law and main arguments are identical with             Furthermore, the applicant and four other undertakings
those relied upon in Case T-316/97 Hermínia Fernanda               involved in the concertation were required to put an end
dos Santos Morais Antas v Council and Commission.                  to the infringements of Article 65(1) of the ECSC Treaty
                                                                   and to refrain from repeating the acts or conduct
                                                                   complained of and from adopting any measure having an
                                                                   equivalent effect (Article 4 of the decision).
                                                                   The applicant contests in its entirety that decision
Action brought on 11 March 1998 by Krupp Thyssen                   imposing a fine. In support of its claim, it pleads non-
Stainless GmbH against the Commission of the European              compliance with essential procedural requirements laid
                         Communities                               down by the ECSC Treaty and by the applicable
                       (Case T-45/98)                              legislation implementing that Treaty.
                        (98/C 166/44)
                                                                   In its first head of claim (alleging formal defects and
              (Language of the case: German)                       erroneous findings of fact), the applicant complains of the
                                                                   following:
An action against the Commission of the European
Communities was brought before the Court of First                  Ð it was not given adequate access to the files in the pre-
Instance of the European Communities on 11 March 1998                   litigation procedure;
by Krupp Thyssen Stainless GmbH, Bochum (Federal
Republic of Germany), represented by Otfried                       Ð there was no pre-litigation procedure with regard to
Lieberknecht,     Karlheinz    Moosecker      and    Martin             the activities of Thyssen AG in the flat stainless steel
Klusmann, Rechtsanwälte, of Messrs Bruckhaus Westrick                   sector;
Heller Löber, Düsseldorf (Federal Republic of Germany),
with an address for service in Luxembourg at the                   Ð errors in the adoption of the decision;
Chambers of Axel Bonn, of Messrs Bonn & Schmitt, 7 Val
Ste Croix.
                                                                   Ð erroneous assumptions concerning the application of
                                                                        the alloy surcharge formula;
The applicant claims that the Court should:
                                                                   Ð the matters discussed at a meeting in Madrid between
Ð annul, in so far as it concerns the applicant, the
                                                                        various producers were incorrectly described;
    defendant's decision of 21 January 1998, as amended
    by the defendant's decision of 2 February 1998,
    communicated to the applicant on 6 February 1998,              Ð erroneous assessment of the practice followed in fixing
    concerning a concerted practice engaged in by                       prices;
    European producers of stainless steel with regard to
    alloy surcharges;                                              Ð incorrect assumptions in the various language versions;
 ---pagebreak--- C 166/18             EN                  Official Journal of the European Communities                                       30.5.98
Ð inaccurate translation of items of evidence                       Action brought on 1 April 1998 by the Netherlands
                                                                          Antilles against the Commission of the European
Ð erroneous assessment of the effects of the formula on                                       Communities
    prices;
                                                                                            (Case T-53/98)
Ð the decision ignored the fact that the concerted                                           (98/C 166/45)
    practice was admitted.
In its second head of claim, the applicant advances the                             (Language of the case: Dutch)
following arguments in support of its plea alleging
defective legal assessment of the infringement:
                                                                    An action against the Commission of the European
Ð the infringement was referable to a specific point in             Communities was brought before the Court of First
    time and was not continuous;                                    Instance of the European Communities on 1 April 1998
                                                                    by the Netherlands Antilles, represented by P. Bos and M.
Ð (in the alternative) for the purposes of assessing the            Slotboom, of the Rotterdam Bar, with an address for
    fine, the period during which the proceeding took               service in Luxembourg at the Chambers of M. Loesch,
    place should have been left out of account.                     11 Rue Goethe.
In its third head of claim, the applicant complains that the
fine was incorrectly assessed; it advances the following            The applicant claims that the Court should:
arguments in support of its plea:
Ð insufficient weight was attached to the fact that the             Ð annul Commission Regulation (EC) No 2553/97 of
    defendant's legal submissions were not contested;                    17 December 1997 on rules for issuing import licences
                                                                         for certain products covered by CN codes 1701, 1702,
Ð failure to take account of the fact that a group of                    1703 and 1704 and qualifying as ACP/OCT
    undertakings was involved;                                           originating products (OJ L 349 of 19.12.1997, p. 26);
Ð failure to have regard to the principle of the protection
    of legitimate expectations;                                     Ð order the Commission to pay the costs.
Ð a token fine was not imposed;
                                                                    Pleas in law and main arguments:
Ð the infringement was erroneously regarded as having
    taken place over a lengthy period;
                                                                    The applicant seeks annulment of the sugar
Ð the applicant was placed              in   a    particularly      implementation regulation, which lays down the detailed
    disadvantageous position;                                       implementing rules for imports of sugar qualifying under
                                                                    the rules relating to ACP/OCT cumulation of origin in
Ð erroneous assessment of the cooperation afforded by               accordance with Article 108b of the OCT decision.
    the applicant, having regard to the scope thereof; and
Ð the same aspects concerning the apportionment of                  The sugar implementation regulation is intended to secure
    blame were taken into account several times over.               the limitation by the Community of imports of sugar
                                                                    originating, in particular, in the Netherlands Antilles. The
Finally, in its fourth head of claim, the applicant asserts         Commission has restricted trade between the Netherlands
that the provisions of Article 1 in conjunction with                Antilles and the Community, contrary to Community law.
Article 4 of the decision are unlawful; in particular, it           Those restrictions must be lifted for the remaining
pleads:                                                             duration of the OCT decision. The application also
                                                                    includes a claim that the legal infringements complained
Ð that they are nugatory;
                                                                    of should not be repeated in the future. Lastly, the
Ð that the provision contained in Article 1 in                      contested regulation imposes serious restrictions on, and
    conjunction with Article 4 of the decision is imprecise;        thus severely affects, an important infant industry' in the
    and                                                             Netherlands Antilles, namely the sugar refining sector.
Ð that Article 65 of the ECSC Treaty affords no
    sufficient legal basis for the provision requiring a            The pleas in law advanced in opposition to the contested
    particular type of conduct in the future.                       regulation allege lack of competence, infringement of
                                                                    essential procedural requirements and infringement of the
Summing up, the applicant therefore asserts that the                Treaty or of rules for the implementation thereof and/or
decision imposing the fine is wholly unlawful; it claims            breach of general principles of Community law, in
that, in any event, the operative part of the decision, as          particular: illegality of Article 101(1) of the OCT decision,
regards Articles 1 and 4 thereof, should be annulled in its         illegality of the origin rules contained in Title I of Annex II
entirety and that the fine imposed on the applicant by              to the OCT decision, illegality of the amending decision
Article 2 of the decision should be substantially reduced.          on which the sugar implementation regulation is based,
                                                                    the fact that the sugar implementation regulation is ultra
                                                                    vires, infringement of Article 234 of the OCT decision,