CELEX: C2002/109/97
Language: en
Date: 2002-05-04 00:00:00
Title: Case T-15/02: Action brought on 31 January 2002 by BASF AG against the Commission of the European Communities

4.5.2002              EN                    Official Journal of the European Communities                                      C 109/49
Pleas in law and main arguments                                        Action brought on 31 January 2002 by BASF AG against
                                                                              the Commission of the European Communities
                                                                                                (Case T-15/02)
The applicants import organic, fair-trade and conventionally
grown bananas into the European Union. They are all non-
traditional importers of bananas who have requested and                                        (2002/C 109/97)
received a C quota for 2002. Because of Commission Regu-
lation 2294/2001, the applicants are allowed to import during
the first quarter of 2002 only 8 % of their quota, while the                              (Language of the case: English)
traditional C operators can import 26 % of their quota, and
the traditional and non-traditional A and B operators 27 %.
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
According to the applicants, the Commission has misused its            European Communities on 31 January 2002 by BASF AG,
powers in that the Commission, by the contested Regulation,            represented by Mr Nicholas Levy, Dr John Temple Lang,
favours the traditional C operators. Following the agreement           Mr Robert O’Donoghue and Dr Christoph Feddersen of Cleary,
reached between the European Union and the United States,              Gottlieb, Steen & Hamilton, Brussels (Belgium).
and the agreement with Ecuador to resolve the respective
disputes over bananas, the banana regime in the European
Union will be reformed in two stages. The second stage
includes a reduction of the C quota by 100 000 tonnes. As a            The applicant claims that the Court should:
consequence of the contested Regulation, the burden of the
decrease of the C quota will be imposed, according to
the applicant, solely on the non-traditional importers. The            —     annul or substantially reduce the fine imposed on BASF
applicant points out that if this limitation of 8 % is taken                 pursuant to Article 3(b) of the Decision;
through the whole year, this leads to a reduction of the import
under the C quota of approximately 100 000 tonnes.
                                                                       —     order the Commission to pay BASF’s legal and other costs
                                                                             and expenses in relation to this matter.
Furthermore, the contested Regulation violates the principles
of proportionality and non-discrimination. The non-tra-
ditional C operators are the only operators who can import
                                                                       Pleas in law and main arguments
only 8 % of their quota in the first quarter. This limitation
discriminates, according to the applicant, between the tra-
ditional and non-traditional C operators in particular. The
contested measure is also disproportionate, since the Com-             The present application concerns a Decision of the European
mission places the burden of the decrease of the C quota solely        Commission rendered on 21 November 2001, in case
on the non-traditional C operators. Instead the Commission             No. COMP/E-1/37.512-Vitamins. This Decision finds that a
could have spread this burden between the traditional and              number of companies infringed Article 81 EC and Article 53
non-traditiona C operators. According to the applicant, it is          EEA by participating in a cartel that affected the global markets
also unlikely that the Commission will divide the remaining            for vitamins A, E, B2, B5, C, D3 and Beta-carotene and
92 % of the quota over the remainder of the year.                      carotinoids. The fines imposed on the companies involved
                                                                       were the highest ever in a competition law case.
Finally, the applicants claim that there has been a violation of
                                                                       In support of its claims, the applicant relies on and submits
the principle of legitimate expectations and legal certainty.
                                                                       the following grounds and main arguments:
According to the applicants, the current 8 % allocation is a
complete departure from the Commission’s earlier practices
where allocations of 26 to 28 % were given to the non-                 —     Whilst the statements of objections stated that there was
traditional C operators for the first quarter of the year. The               a single cartel, comprising collusive arrangements with
applicants also claim that they could legitimately rely on the               regard to various vitamins, the contested Decision, in
fact that the decrease of the C quota would be divided between               contrast, stated for the first time that the arrangements
the different traditional and non-traditional operators in a                 with regard to each vitamin constituted ‘distinct’ infringe-
proportionate manner.                                                        ments of Community competition law. The Commission
                                                                             has thus breached the principle according to which a
                                                                             Decision cannot rely on legal or factual objections
                                                                             that are materially different from those contained in a
                                                                             statement of objections.
 ---pagebreak--- C 109/50               EN                     Official Journal of the European Communities                                          4.5.2002
—     The Commission’s failure clearly to articulate in the              —     annul the decision concerning family allowances taken in
      statement of objections the basis upon which it proposed                 the form of Notice of Amendment No 3 on 13 July
      to fine BASF represents a legal error that prejudiced                    2001 by the Directorate-General for Personnel and
      BASF’s rights of defence. This statement of objections is                Administration of the European Commission;
      general and vague as regards the elements relating to the
      calculation of the fine. On this point, the applicant also
      observes that the ‘starting point’ of its fine was arbitrary,      —     declare that the applicant and her stepdaughters are
      disproportionate and contrary to the principle of equal                  entitled to receive the family allowances suspended by
      treatment, and that the 100 % increase imposed upon it                   the Commission’s decision of 13 July 2001 together with
      as a deterrent is unexplained, excessive and could not                   default interest, pursuant to Article 67 of the Staff
      reasonably have been foreseen.                                           Regulations;
—     The Commission erred in attributing to BASF the joint
      role of leader and instigator of the alleged cartel.               —     order the European Commission to pay the sum of
                                                                               EUR 35 935 together with statutory interest by way of
                                                                               compensation for the material damage caused by its
—     The applicant satisfied all the conditions for an award of               failure to give an express decision upholding the com-
      a greater reduction of its fine under Section B of the                   plaint lodged on 14 September 2001;
      Leniency Notice. In any case, irrespective of this Leniency
      Notice, BASF’s co-operation merits a greater reduction of
      its fine.                                                          —     order the European Commission to pay the sum of
                                                                               EUR 25 000 or such other amount, including any higher
                                                                               amount, as may be determined by the Court of First
—     The Commission’s disclosure of BASF’s fine to the                        Instance by way of compensation for the non-material
      media prior to the adoption of the contested Decision                    damage suffered, first, as a result of the failure to respond
      constitutes a material legal error.                                      to the complaint lodged on 14 September 2001 and,
                                                                               second, the incorrect and fallacious information provided
                                                                               to the European School by the defendant;
                                                                         —     order the defendant to pay all the costs, including lawyers’
                                                                               fees, incurred as a result of the action brought pursuant
                                                                               to Article 90(1) of the Staff Regulations;
Action brought on 5 February 2002 by Anita Jannice                       in the alternative:
Österholm against the Commission of the European
                           Communities
                                                                         —     order the European Commission to pay the sum of
                                                                               EUR 235 340 together with statutory interest by way of
                          (Case T-18/02)
                                                                               compensation for the material damage caused by the
                                                                               invoicing of the school fees relating to the attendance at
                         (2002/C 109/98)                                       the European School of the applicant’s stepdaughters.
                   (Language of the case: French)
                                                                         Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 February 2002 by Anita Jannice
Österholm, residing in Stockholm, represented by Juan Ramón            The contested decision suspends the applicant’s household
Iturriagagoitia, lawyer.                                                 allowance, dependent child allowance and education allow-
                                                                         ance. In support of her claim, the applicant pleads, first, an
                                                                         error of assessment of the facts and misuse of powers by the
The applicant claims that the Court should:                              Commission. In the applicant’s view, she fulfils all the con-
                                                                         ditions for entitlement to the household allowance, dependent
                                                                         child allowance and education allowance as laid down in
—     annul the decision given by the Directorate-General for            Article 67 of the Staff Regulations and Annex VII thereto, and
      Personnel and Administration of the European Com-                  has also provided the Commission with all the evidence
      mission on 13 July 2001 concerning family allowances;              necessary for the grant of those allowances.