CELEX: C1995/119/40
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 22 February 1995 by British Cement Association against the Commission of the European Communities (Case T-54/95)

No C 119/18           EN                 Official Journal of the European Communities                                   13 . 5 . 95
The Rugby Group pic, represented by Ms Lynda Martin                     Rugby was not given an opportunity to comment on the
Alegi and Mr Jacques Bourgeois with an address for service               Commission's legal case against it.
in Luxembourg at the chambers of Loesch & Wolter, 1 1 , rue
Goethe, L-1637 Luxembourg.                                              The Commission did not give Rugby an opportunity to
                                                                        comment on crucial aspects of the Commission's
The applicant claims that the Court should :                            analysis of economic issues .
— annul Articles 1 , 2, 4, 8 and 9 of the Commission                    The separation of the national from the international
    Decision of 30 November 1994 relating to a proceeding               chapters of the Statement of Objections was improper
    under Article 85 of the EC Treaty ( Cases IV/33.126 and             and has impeded Rugby's defence .
    IV/33.322 — Cement) in so far as they pertain to The
    Rugby Group pic,                                                    The Commission failed adequately to individualise and
                                                                        identify the objections against Rugby in the Statement of
— subsidiarily, modify Article 9 of the Decision as it                  Objections and failed to establish in the Decision
    pertains to The Rugby Group pic so as to annul or                   Rugby's individual participation in the alleged
    substantially reduce the fine imposed on The Rugby                  violations .
    Group pic therein, and
                                                                        The Decision holds Rugby responsible so far as the fines
— an order that the Commission pay all of the costs
    incurred by The Rugby Group pic.                                    are concerned for matters concerning bilateral relations
                                                                        of which Rugby was not accused in the Statement of
                                                                        Objections .
Pleas in law and main arguments adduced in support:
                                                                        Rugby was denied access to clearly exculpatory material
The grounds relied upon by Rugby in this appeal are :                   concerning the proposed Belgian/Dutch basing-point
                                                                        system .
1 . Infringement by the Commission ofArticle 85 of the EC
    Treaty and rules of law relating to its application
                                                                    4. Annulment or reduction of the fine
    The Commission improperly assessed the facts
    concerning Rugby's responsibility for the alleged                   As a subsidiary demand, Rugby requests that the fine
    Cembureau agreement and concerning the Two                          imposed on Rugby be annulled or substantially
    Shiploads:                                                          reduced .
    — by seeking to extend liability for indirect
        participation to 'Guilt by membership',
    — in concluding that the various alleged infringements
        constitute a 'single and continuous agreement',
        and
                                                                    Action brought on 22 February 1995 by British Cement
    — by failing properly to consider the duration of               Association against the Commission of the European
        Rugby's alleged individual participation.                                             Communities
                                                                                            (Case T-54/95 )
2 . Inadequate reasoning of the Decision                                                     ( 95/C 119/40 )
3 . Infringement of essential procedural requirements                              (Language of the case: English)
    The Commission withheld from Rugby exculpatory
    documents .                                                     An action against the Commission of the European
                                                                    Communities was brought before the Court of First
    The Commission relies in the Decision against Rugby on          Instance of the European Communities on 22 February
    a document, which was not made available to Rugby               1995 by British Cement Association, represented by
    during the administrative proceedings and which is              Mr Kenneth Parker, Mr Robert Tudway and Ms Dorcas
    incompletely quoted in the Decision.                            Rogers with an address for service in Luxembourg at the
                                                                    chambers of Arendt & Medernach, Boîte Postale 39 ,
    The procedure was abandoned and closed as regards the           L-2010 Luxembourg.
    Two Shiploads by the Commission's letter of
    27 September 1993 and the Commission is therefore not
    entitled to base its Decision on that incident .                The applicant claims that the Court should:
    The allegations in the Statement of Objections were not         — annul the Commission's Decision of 30 November 1994
    sufficiently precise to cover Rugby's alleged involvement           in so far at it relates to the Applicant, and
    with the Two Shiploads and did not give Rugby an
    adequate opportunity to defend itself in this respect.          — order the Commission to pay the applicant's costs .
 ---pagebreak---  13 . 5 . 95         LJN.                   Official Journal of the European Communities                                No C 119/ 19
Pleas in law and main arguments adduced in support:                         Freedoms. In the view of the applicant, the procedure
                                                                            followed by the Commission in competition law is one
The applicant contends that the findings against the                        which may lead to the imposition of sanctions and, as
applicant of infringements of Article 85 are erroneous, being               such, should have the procedural guarantees which are
based on a materially incorrect appreciation of the facts and               characteristic of criminal proceedings, as is recognized
vitiated by manifest error of assessment.                                   in Member States where the administrative law
                                                                            provides for the imposition of penalties . None the less,
Further, or in the alternative, the applicant contends that                 in Community law the Commission is the body which
the Commissioin failed to observe essential procedural                      both investigates and makes decisions, with the power
requirements in that:                                                       to impose coercive sanctions on undertakings which
— the reasoning to support the findings of infringement                     are the subject of proceedings . Therefore the procedure
     against the applicant is inadequate, and/or                            lacks objectivity, contrary to Article 6 of the
                                                                            abovementioned Convention .
— the applicant was deprived of a proper opportunity to be
     heard in so far as certain findings of infringement in the         II. Infringement of rights of the defence. The applicant
     Decision were not set out in the Statement of Objections               maintains that its rights were infringed in the course of
      served on the applicant in the administrative                         the administrative procedure inasmuch as:
     proceedings.
                                                                            1 , it was not given access to the full file;
                                                                            2, the objections raised against the applicant were not
                                                                                sufficiently specified;
Action brought on 22 February 1995 by Asland SA against
        the Commission of the European Communities                          3 , the Decision contains new objections which are
                          Case T-55/95 )                                        different to those raised against the applicant in the
                                                                                Statement of Objections .
                           ( 95/C 119/41 )
                                                                       III. Insufficient statement of reasons. The applicant states
                (Language of the case: Spanish)                             that the Commission has failed to set out clearly and
                                                                            coherently the considerations of fact and law on which
An action against the Commission of the European                            it has based its Decision, so that neither the applicant
Communities was brought before the Court of First                           nor the Court of First Instance is in a position to be
Instance of the European Communities on 22 February                         cognizant of the elements of its reasoning.
1995 by Asland SA, whose registered office is Barcelona
( Spain), represented by Antonio Creus Carreras, of the                IV. Misapplication of Article 85 ( 1 ) to the applicant's
Barcelona Bar, Antonio Hierro Hernandez Mora , of the                       conduct.
Madrid Bar, and Xavier Ruiz Calzado, of the Barcelona Bar,
with an address for service in Brussels at 78 Avenue
                                                                            1 . First, the applicant considers that, in so far as it is
d'Auderghem.                                                                    concerned, the Commission has not determined
                                                                                the facts correctly, since it is alleged to have
The applicant claims that the Court should:                                     participated in the ' Cembureau Agreement' solely
                                                                                on the basis of its proven attendance at a meeting
— annul in whole or in part Commission Decision ( 94 )
     3077 final of 30 November 1994,                                            prior to that setting up the 'European Task Force '
                                                                                and on the unfounded assumption that it also
— in the alternative, in the event that the Decision is upheld                  participated in the subsequent meeting of that
     in whole or in part, cancel the fine imposed on Asland SA                  group .
     in Article 9,
                                                                            2 . Secondly, the applicant states that, in so far as it is
— in the further alternative, in the event that the Decision is                 concerned, all the legal assessments of the
     upheld in whole or in part, substantially reduce the fine                  Commission of the unproven facts are unfounded,
     imposed on Asland SA in Article 9,                                         since it has not been proven that, by attending the
                                                                                meeting in Rome in May 1986 the applicant had
— order the Commission to pay to Asland SA the whole of                         infringed Article 85 ( 1 ) of the EC Treaty.
     the costs of the proceedings, including the costs (with
     interest) of the security lodged for payment of the whole          V. In the alternative, in so far as concerns the fine, the
     or part of the fine .                                                  applicant pleads:
Pleas in law and main arguments adduced in support:                         1 , inadequacy of the reasons given for the fine;
The applicant relies on the following grounds in support of
its application:                                                            2 , misapplication of Article 15 (2 ) of Regulation
                                                                                No 17/62 to the conduct of the applicant;
  I. Infringement of Article 6 of the European Convention
       for the Protection of Human Rights and Fundamental                   3 , breach of the principle of equal treatment;