CELEX: C1995/315/38
Language: en
Date: 1995-11-25 00:00:00
Title: Action brought on 25 September 1995 by Accinauto SA against the Commission of the European Communities (Case T-176/95)

25 . 11 . 95           EN                    Official Journal of the European Communities                                  No C 315/ 19
— in the alternative, cancel or mitigate the fine imposed on                Treaty, such infringement was negligible in its effects .
    the applicant by Article 2 of the said Decision,                        The part of the market which was affected by the Treaty
                                                                            and by the single case of non-delivery was so minuscule
— order the defendant to pay all of the costs of the                        that there can be no question of market conditions
    proceedings incurred by the applicant,                                  having been effected .
— order the defendant, in the event that the applicant is               5 . The defendant's assumption regarding the duration of
    successful, to reimburse to the applicant the costs of the              the agreement is untenable . Since there was in any event
    bank guarantee provided by the applicant as security for                only one single case of refusal to supply, a distinction
    the payment of the fine .                                               should have been drawn in assessing the duration .
Pleas in law and main arguments adduced in support:                     6 . The defendant has abused its discretionary powers . It
                                                                            has failed to have reasonable regard to :
I. The applicant complains of infringement of essential
procedural requirements .                                                   — the gravity of the infringement,
1 . The defendant refused to allow the applicant's                          — the duration of the alleged infringement,
     representative the complete access to the file to which he
     was entitled on grounds of equality of arms .                          — the economic situation of the applicant, or
     Consequently, the applicant was disadvantaged in                       — the absence of intent .
     putting forward its defence .
2 . The applicant was not provided with a translation into
     German , the language of the proceeding applicable in its
     case , of the minutes of the hearing on 23 September
     1993 . This constitutes an infringement of Article 3 of
     Regulation No 1 of the Council of 15 April 1958 . It also
     resulted at the same time in a restriction of the                  Action brought on 25 September 1995 by Accinauto SA
     applicant's ability to defend itself.                                against the Commission of the European Communities
                                                                                                 ( Case T-176/95 )
II . The agreement concluded on 8 October 1 982 between                                            ( 95/C 315/38 )
the applicant and Accinauto does not infringe Article 85 ( 1 )
of the EC Treaty .
                                                                                       (Language of the case: German)
1 . The defendant could not have reached the contrary
     conclusion were it not for the totally inadequate
     clarification of the circumstances . The conduct of the            An action against the Commission of the European
                                                                        Communities was brought before the Court of First
     parties was caused by the supply problems existing                 Instance of the European Communities on 25 September
     during the period in question and the need to ensure
                                                                        1995 by Accinauto SA, Brussels , represented by Helmut
     uniformity in the provision of supplies to all of the
                                                                        Glassen, Rechtsanwalt, Leimen ( Federal Republic of
     markets served by the applicant.                                   Germany ), with an address for service in Luxembourg at the
                                                                        Chambers of Loesch & Wolters, 1 1 Rue Goethe .
2 . There is nothing in the wording of the Treaty, or the way
     in which it is applied, which conflicts with that
     interpretation . In the light of the evolution of the Treaty,      The applicant claims that the Court should :
     and the way in which it is applied, the term 'pass on '
     used in the agreement can only have meant that the                 — annul the defendant's decision of 12 July 1995 , notified
     applicant was to be kept informed about the flow of                    on 24 July 1995 , concerning a proceeding under
     goods . That was a legally unobjectionable practice . The              Article 85 of the EC Treaty ( Case IV/33.802 — BASF
     provision of such information was particularly                         Lacke + Farben AG and SA Accinauto ) in so far as it
     indispensable in times of shortage, in order to ensure, as             concerns the applicant,
     far as possible, uniformity of supply to the different
     markets     and    to    avoid    a   situation    in  which
                                                                        — in the alternative, cancel or mitigate the fine imposed on
     coach-building works switched to other competitors .
                                                                            the applicant by Article 2 of the said decision,
3 . If the evidence submitted is interpreted in the light of
     that background, it becomes clear that its overall                 — order the defendant to pay all of the costs of the
     context supports the applicant's case : the conduct of the             proceedings incurred by the applicant,
     parties involved is due purely and solely to the shortage
     situation and the problems arising from it. It cannot be           — order the defendant, in the event that the applicant is
     attributed to any collusion .                                          successful , not only to reimburse to the applicant the
                                                                            amount of the fine but also to pay it interest at the same
4 . Even if the agreement in question could be regarded as                  rate ( 9,5 % ) as that fixed by the defendant in Article 2 ( 2 )
     constituting an infringement of Article 85 ( 1 ) of the EC             of the contested decision .
 ---pagebreak--- No C 315/20            EN                  Official Journal of the European Communities                                    25 . 11 . 95
Pleas in law and main arguments adduced in support:                   Action brought on 28 September 1995 by Patrick Barraux,
                                                                      Klaus Kammerichs and Vittorino Tebaldi against the
                                                                               Commission of the European Communities
 I. The applicant complains of infringement of essential
                                                                                              ( Case T- 177/95 )
procedural requirements . The applicant was not provided
with a translation into French, the language of the                                             ( 95/C 315/39 )
proceeding applicable in its case, of the minutes of the
hearing on 23 September 1993 . This constitutes an                                   (Language of the case: French)
infringement of Article 3 of Council Regulation No 1 . It also
resulted at the same time in a restriction of the applicant's
ability to defend itself.                                             An action against the European Communities was brought
                                                                      before the Court of First Instance of the European
                                                                      Communities on 28 September 1995 by Patrick Barraux,
II . The agreement concluded on 8 October 1982 between                residing at Karlsruhe ( Germany ), Klaus Kammerichs,
the applicant and BASF L + F does not infringe Article 85(1 )         residing at Stutensee ( Germany ) and Vittorino Tebaldi ,
of the EC Treaty .                                                    residing at Marxzell-Burbach ( Germany ), represented by
                                                                      Jean-Noel Louis, Thierry Demaseure, Veronique Leclerq
                                                                      and Ariane Tornel , of the Brussels Bar, with an address for
1 . The defendant could not have reached the contrary                 service in Luxembourg at the offices of Fiduciaire Myson
    conclusion were it not for the totally inadequate                 Sari , 1 Rue Glesener.
    clarification of the circumstances . The conduct of the
    parties was caused by the supply problems existing                The applicants claim that the Court should :
    during the period in question and the need to ensure
    uniformity in the provision of supplies to all of the
    markets served by the applicant.                                  — annul the applicants ' pay slips for the period from 1 July
                                                                          to 31 December 1994 ,
2 . There is nothing in the wording of the Treaty, or the way         — order the defendant to pay the applicants the
    in which it is applied, which conflicts with that                     remuneration to which they are entitled, together with
    interpretation . In the light of the evolution of the Treaty,         default interest calculated at the annual rate of 8 % from
    and the way in which it is applied, the term 'pass on '               the date when the remuneration became due until the
    used in the agreement can only have meant that the                    date when it is paid,
    applicant was to keep BASF L + F informed about the
    flow of goods . That was a legally unobjectionable               — order the defendant to pay the costs .
    practice . The provision of such information was
    particularly indispensable in times of shortage, in order
    to ensure, as far as possible, uniformity of supply to the        Pleas in law and main arguments adduced in support:
    different markets and to avoid a situation in which
    coach-building works switched to other competitors .              The applicants, three Commission officials employed in the
                                                                      Institute for Transuranic Elements, Karlsruhe, contest the
                                                                      reduction of their remuneration with retroactive effect in
3 . If the evidence submitted is interpreted in the light of          consequence of the entry into force of Council Regulation
    that background, it becomes clear that its overall                ( EC, ECSC, Euratom ) No 3161 /94 adjusting, with effect
    context supports the applicant's case : the conduct of the        from 1 July 1994, the remuneration and pensions of officials
    parties involved is due purely and solely to the shortage         and other servants of the European Communities and the
    situation and the problems arising from it . It cannot be        weightings applied thereto .
    attributed to any collusion .
                                                                     That Regulation, adopted in compliance with the judgment
                                                                      of 27 October 1994 in Case T-64/92 , in which the Court of
4 . Even if the agreement in question could be regarded as
    constituting an infringement of Article 85 ( 1 ) of the EC        First Instance held that the Council was not empowered to
    Treaty, such infringement was negligible in its effects .         fix a weighting for Germany on the basis of the cost of living
    The part of the market which was affected by the Treaty           in a city other than the capital , provides in particular, in
    and by the single case of non-delivery was so minuscule          Article 6(1 ), for the fixing of a specific weighting applicable
    that there can be no question of market conditions               to the remuneration of officials employed at Karlsruhe .
    having been affected .
                                                                     The applicants plead, first of all , the illegality of the
                                                                      aforementioned Regulation, inasmuch as the power of the
5 . The defendant's assumption regarding the duration of              Council to prescribe weightings pursuant to Articles 64 and
    the agreement is untenable . Since there was in any event         65 of the Staff Regulations and Article 9 of Annex XI
    only one single case of refusal to supply, a distinction         thereto, which entails the obligation, in accordance with the
    should have been drawn in assessing the duration .                principle of equality of treatment between officials, to fix a
                                                                      specific weighting ' forthwith', may only be exercised in the
                                                                     event that an appreciable disparity is found to have arisen
                                                                      between the cost of living in a place of employment and the
                                                                     cost of living in the capital .