CELEX: C1995/101/34
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 17 February 1995 by Vicat SA against the Commission of the European Communities (Case T-37/95)

No C 101 /16           EN                   Official Journal of the European Communities                                     22 . 4 . 95
      — the allegation in Article 4 ( 1 ) of the Decision that          (2 ) in the event that the Court does not grant the
          the applicant participated in an agreement on the                   application referred to in ( 1 ) above, modify Article 9 of
          setting-up of the 'Cembureau Task Force' or                         the aforesaid Decision so as to cancel or substantially
          'European Task Force' is incorrect,                                 reduce the fine imposed on Vicat;
      — contrary to what is stated in Article 4 (2 ) of the             ( 3 ) order the Commission to pay all the costs,
          Decision, the applicant did not participate in any                  documentary evidence in support of which will be
          agreement on the setting-up of the Joint Trading                    supplied at a later date .
          Company, Intercement; nor was it ever a
          shareholder in that undertaking,                              Pleas in law and main arguments adduced in support:
      — contrary to what is stated in Article 4 ( 3 ) of the            The applicant pleads as follows in support of its
          Decision, the applicant at no time participated               application:
          in concerted practices designed to withdraw
          Calcestruzzi      as   a  customer   from        the  Greek      I. Procédural defects :
          producers,
                                                                              1 , Defective notification of the objections:
      — there is no actual evidence or legal justification for
          the findings in Article 5 of the Decision that the                       ( a ) failure to specify individually the objection
          applicant participated, within the framework of                                of participation in the agreement on non­
          the ECEC, in any exchange of information or                                    transhipment to home markets;
          agreements designed to prevent incursions into
          national markets, since the activities of the ECEC                       ( b ) failure to specify individually the evidence
          related solely to markets in third countries,                                  showing the participation by the applicant in
                                                                                         the infringement referred to in Article 1 .
      — Article 7 of the Decision is untenable in law and in
          fact, since it was not the task of the WCC to protect               2, breach of the obligation to provide access;
          domestic markets and to export the production
          surpluses of WCC members by universal consent to                    3 , infringement of the substantive rules requiring the
          markets in third countries; in actual fact, there were                  Advisory Committee to be consulted;
          no rules regarding domestic markets, and the
          activities of the WCC related exclusively to markets                4, breach of the principle of impartiality.
          in third countries,
                                                                         II. Infringement of Article 85 by reason of manifest defects
      — lastly, Articles 9 and 10 of the Decision seriously                   in the statement of reasons for the decision :
          disregard the requirement of fault, the question of
          prescription and the criteria laid down by the Court                1 . The Commission has failed to adduce sufficient
          of Justice as to the determination of the level of                      evidence in law to show that the applicant
          fines .                                                                 participated in a 'general agreement on
                                                                                  non-transhipment to home markets'.
                                                                              2. Absence of any concerted practice with Buzzi: the
                                                                                  applicant contests, first, the allegation that its
                                                                                  exchange of price information with Buzzi is capable
Action brought on 17 February 1995 by Vicat SA against                            of constituting an infringement of Article 85 ;
       the Commission of the European Communities                                 second, it considers that the conduct found to have
                          ( Case T-37/95 )                                        taken place is justified on grounds other than those
                            ( 95/C 101 /34 )                                      put forward by the Commission and that that
                                                                                  justification is such that, in accordance with settled
                                                                                  case-law, the conduct in question cannot qualify as
                  (Language of the case: French)                                  an infringement in the present case.
An action against the Commission of the European                       III. The applicant contends that the fine is manifestly
Communities was brought before the Court of First                             excessive, even assuming that certain facts alleged
Instance of the European Communities on 17 February                           against it are found to constitute an infringement:
1995 by Vicat SA, the head office of which is in Paris,
represented by Edouard Didier and Jean-Claude Rivalland,                      1 . in determining the amount of the fine imposed on
of the Paris Bar, with an address for service in Luxembourg                       the applicant, the Commission manifestly failed to
at the Chambers of Carlos Zeyen, 67 Rue Ermesinde.                                take account of the specific circumstances
                                                                                  attaching to the applicant. In so doing, the
The applicant claims that the Court should :                                      Commission wrongly assessed the gravity of the
                                                                                  infringement as regards the applicant;
( 1 ) annul, wholly or in part, Articles 1 , 3 ( 1 ) (c ) and 9 of the
      Decision of the Commission of 30 November 1994 in                       2 , the duration of the infringements found by the
      so far as those articles concern Vicat;                                     Commission to have been committed by the
 ---pagebreak--- 22 . 4 . 95             EN                Official Journal of the European Communities                                No C 101 / 17
           applicant bears no relation to the facts upon which       Substantive defects
           it relies;
                                                                     The Commission erred in its demarcation of the relevant
       3 , the Commission erred in its determination of the
                                                                     geographical markets; for that reason alone, its findings
           basis on which the fine was to be imposed .               regarding restriction of competition were incorrect.
                                                                     The Commission sought to bracket together all agreements
                                                                     and practices into a 'single and continuing agreement',
Action brought on 17 February 1995 by Heidelberger                   without stating any reasons therefor . In so doing, it
Zement Aktiengesellschaft against the Commission of the              construed — wrongly in law — a network of ostensible
                      European Communities                           connections, and thus of possible imputations.
                          (Case T-42/95 )                            The conduct of other undertakings or associations of
                           ( 95/C 101 /35                            undertakings cannot be imputed to the applicant as regards
                                                                     membership of an association of undertakings .
                 (Language of the case: German)
                                                                     The Commission is unable to prove the existence of any
An action against the Commission of the European                     'agreement on non-transhipment to domestic markets'. The
Communities was brought before the Court of First                    Commission has no evidence to show that the information
Instance of the European Communities on 17 February                  emerging from the meetings between the Head Delegates
1995 by Heidelberger Zement Aktiengesellschaft of                    was passed on to, and acted upon by, the applicant. No
Heidelberg ( Federal Republic of Germany), represented by            evidence has been adduced to show that the duration of any
Rainer Bechtold, Rechtsanwalt, Stuttgart, and Hans-Jorg              agreement extended beyond 10 June 1985 .
Niemeyer, Rechtsanwalt, Brussels, with an address for
service in Luxembourg at the Chambers of Loesch &                    Nor is the Commission able to prove the existence of any
Wolter, 11 Rue Goethe .                                              agreement or concerted practice restricting cross-border
                                                                     trade between Germany and France.
The applicant claims that the Court should :
— annul, pursuant to the second paragraph of Articles 173            The Commission's allegation regarding participation in
     and 174 of the EC Treaty, the Decision of the                   agreements for the setting-up of the European Task Force
     Commission of 30 November 1994 ( Cases IV/33.126                ( ETF ) and a joint trading company, and in concerted
     and 33.322 — Cement), in so far as it concerns the              practices designed to withdraw Calcestruzzi as a customer
     applicant,                                                      from the Greek producers, are based solely on the presence
                                                                     of Heidelberger Zement at a meeting in Rome . Nothing
— in the alternative, pursuant to Article 17 of Regulation           impermissible was discussed or predetermined at that
     No 17 of 6 February 1962, vary Article 9 of the decision,       meeting. The Commission is unable to adduce any other
     in so far as it concerns the applicant, so as to cancel or      evidence .
     considerably reduce the fine imposed on the
     applicant,                                                      The Commission has not given reasons for the size of the
                                                                     fine imposed on the applicant. Furthermore, it has failed to
— order the Commission, pursuant to Article 87 ( 2 ) of the          fulfil its obligation to determine the amount of fines on an
     Rules of Procedure of the Court of First Instance, to pay       individual basis, in that it failed to take into consideration
     the costs of the proceedings necessarily incurred by the        the individual conduct of Heidelberger Zement and its
     applicant.                                                      position within the alleged cartel . Consequently, the fine has
                                                                     been invalidly imposed .
Pleas in law and main arguments adduced in support:
Procedural defects
The applicant objects that the statement of objections
communicated to it was incomplete and unclear . It was
expressed in such blanket terms ('the European cement
producers ') that the applicant was unable to identify               Action brought on 20 February 1995 by Aalborg
specifically which aspects of its conduct were the subject of        Portland A/S against the Commission of the European
                                                                                                Communities
complaint.
                                                                                             ( Case T-44/95 )
The grant of access to the documentation was dealt with in a
                                                                                               ( 95/C 101 /36 )
discriminatory way. It was limited merely to part of the
documentation, without adequate reasons being given.
                                                                                     (Language of tbe case: Danish)
From the outset, the periods prescribed for replying to the
statement of objections were too short.
                                                                     An action against the Commission of the European
At the oral hearing, the applicant's right to participate, and       Communities was brought before the Court of First
to an even greater extent its right to make oral statements,         Instance of the European Communities on 20 February
was restricted .                                                     1995 by Aalborg Portland A/S, Aalborg (Denmark),