CELEX: C1995/101/28
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 15 February 1995 by Fédération de l'Industrie Cimentière Belge asbl against the Commission of the European Communities (Case T-30/95)

22 . 4 . 95           | EN                   Official Journal of the European Communities                                  No C 101 /11
As regards the substance of the case, the applicant considers           (iii ) request the Court to make any measures of preliminary
that the contested Decision :                                                    enquiry that it may consider necessary.
— fails to show that it participated in an alleged agreement
      on non-transhipment to domestic markets,                          Pleas in law and main arguments adduced in support:
— further fails to show that it participated in any                     The applicant maintains, on the one hand, that the contested
      agreement or concerted practice relating to Greek                 decision has infringed the EC Treaty because :
      cement ,
                                                                        — the findings in the decision that the Applicant infringed
— further fails to show that the limited activities of the                    Article 85 ( 1 ) of the EC Treaty are erroneous, being
      White Cement Committee were capable of constituting a                    based on a materially incorrect appreciation of the facts
      restriction of competition within the meaning of                         and vitiated by manifest errors of assessment,
      Article 85 of the EC Treaty.
                                                                        — the analysis of the application of Article 85 ( 1 ) to
In the alternative, the applicant applies for the reduction or                 associations of undertakings in the decision is flawed by
annulment of the fines imposed on it, asserting that those                     errors of law and inadequate reasoning.
fines :
                                                                        It considers, on the other hand, that the Commission has
— result in discriminatory treatment of the undertakings                infringed the applicant's right to be heard in the
      allegedly party to the agreement on non-transhipment to           administrative proceedings under Regulations ( EEC )
      domestic markets,
                                                                        No 17/92 and ( EEC ) No 99/63 , by failing to give it a full
                                                                        copy of the Statement of Objections and full access to the
— are wrongly based on certain factors found to be                      file .
      aggravating,
— fail to take into consideration the mitigating factors
      relating specifically to the applicant,
— impose, in the white cement sector, a pecuniary sanction
      on the applicant in respect of conduct which it adopted,
      with the approval of the Commission, in another                   Action brought on 15 February 1995 by Fédération de
      agreemeent and which cannot, therefore, be regarded as            l'Industrie Cimentière Belge asbl against the Commission of
      constituting, in its case, wilful or negligent infringement                           the European Communities
      of Article 85 .                                                                             ( Case T-30/95 )
                                                                                                    ( 95/C 101/28 )
                                                                                          (Language of the case: French)
Action brought on 14 February 1995 by Cembureau —                       An action against the Commission of the European
Association Européenne du Ciment against the Commission                 Communities was brought before the Court of First
                  of the European Communities                           Instance of the European Communities on 15 February
                           (Case T-26/95 )                              1995 by Fédération de l'Industrie Cimentière Belge asbl, the
                            ( 95/C 101 /27                              head office of which is in Brussels ( Belgium ), represented by
                                                                        Onno W. Brouwer and Frédéric P. Louis, of the Brussels Bar,
                                                                        with an address for service in Luxembourg at the Chambers
                 (Language of the case: English)                        of M. Loesch, 11 Rue Goethe.
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that the Court should:
Instance of the European Communities on 14 February
1995 by Cembureau — Association Européenne du Ciment,                   — annul Articles 1 , 2, 5 , 8 and 9 of the Decision of the
represented by Julian Ellison with an address for service in                   Commission of 30 November 1994 relating to a
Luxembourg at the office of Aloyse May, 31 Grand Rue,                          proceeding under Article 85 of the EC Treaty ( Cases
L-2011 Luxembourg.                                                             IV/33.126 and 33.322 — Cement), inasmuch as
                                                                               Fédération de l'Industrie Cimentière Belge asbl is stated
The applicant claims that the Court should :                                   therein to have participated in agreements or concerted
                                                                               practices contrary to Article 85 of the EC Treaty and has
  (i ) annul the Commission's Decision in Cases IV/33.126                      been fined in that regard,
        and 33.322 — Cement, in so far as it affects
        Cembureau;                                                      — in the alternative, annul or reduce the fine imposed on
                                                                               the applicant by Article 9 ( 10 ) of the Decision,
 (ii) order the Commission to pay Cembureau's costs;
        and                                                             — order the Commission to pay the costs .
 ---pagebreak--- No C 101/ 12          EN                   Official Journal of the European Communities                                     22 . 4 . 95
Pleas in law and main arguments adduced in support:                   Articles 2 and 4 of Regulation No 99/63 , in that the
                                                                      Commission did not allow it to put forward its views on the
                                                                      fundamental differences between the nature and reasoning
The applicant asserts, first of all, that the Commission              of the objections made against it and the Commission's
seriously infringed its rights to a fair hearing, in that, first, it  views as set out in the statement of objections .
allowed it only the most limited access to the file relating to
the proceeding, in complete contravention of the case-law of
the Court of First Instance and of its legitimate expectations,       As regards the fine, the applicant maintains that the
and, second, it denied the applicant access to the                    Commission, which has not shown the existence of the
exculpatory material contained in the sections relating to            alleged ' Cembureau agreement', was not entitled to impose
'national' objections, thereby preventing it from obtaining           on it a fine of ECU 100 000 in respect of that infringement.
information arising from the withdrawal of the said                   It also considers that the Commission infringed its right to a
objections .                                                          fair hearing by failing to warn it of its intention to impose a
                                                                      fine on it. Lastly, the applicant considers that the
                                                                      Commission has not legally justified the criteria on which it
                                                                      based its calculation of the duration of the infringement for
The applicant further considers that the contested decision           the purposes of determining the amount of the fine.
is vitiated by errors of fact and of law. The Commission:
— has failed to show that the applicant and its members
     were ever informed of the conclusion of the alleged
     ' Cembureau agreement' and, a fortiori, that the
     applicant and its members authorized or approved the             Action brought on 16 February 1995 by Eerste Nederlandse
     applicant's participation in the said agreement,                 Cementindustrie (ENCI) NV against the Commission of the
                                                                                            European Communities
— has failed to demonstrate the existence of the alleged                                        (Case T-31/95 )
     'Cembureau agreement' on non-transhipment to home                                           ( 95/C 101 /29 )
     markets and regulation of trade between member
     countries,
                                                                                        (Language of the case: Dutch)
— has failed to characterize in legal terms the objection             An action against the Commission of the European
     concerning the alleged rules designed to ensure fair             Communities was brought before the Court of First
     competition, and has not incorporated it as such in the          Instance of the European Communities on 16 February
     operative part of the decision,                                  1995 by Eerste Nederlandse Cementindustrie ( ENCI) NV,
                                                                      established at 's-Hertogenbosch, represented by B. W.
                                                                      Biesheuvel and T. M. Snoep, of the Hague Bar, with an
— has not indicated fully in what way the price information           address for service in Luxembourg at the Chambers of L.
     exchanged at the meetings of Head Delegates, the                 Frieden, 6 Avenue Guillaume .
     indefinite and innocuous nature of which is apparent
     from all the available documents, could have been such
     as to strengthen the alleged ' Cembureau agreement' or           The applicant claims that the Court should:
     permit the alleged establishment of rules governing 'fair
     or healthy or correct' competition,                              A.      primarily:
                                                                         (i ) annul the (contested parts of the ) decision of the
— has based its assessment of the exchange of statistical                     Commission of 30 November 1994 relating to a
     data regarding Benelux on erroneous findings,                            proceeding under Article 85 of the EC Treaty ( Cases
                                                                              IV/33.126 and 33.322 — Cement) (*) or at least annul
                                                                              it in relation to ENCI, on the ground of infringement
— has      not   demonstrated      the    connection    between
                                                                              of essential procedural requirements;
     competitive conduct within the Community and
     cooperation in large-scale exports within the ECEC .
                                                                      B.      alternatively:
                                                                       ( ii ) annul the (contested parts of the ) decision, or at least
The applicant also pleads a lack of reasoning in the                          annul it in relation to ENCI, on the ground that it
contested decision, in that the Commission has failed to                      infringes the law, including Article 85 of the EC
mention the reasons which prompted it to withdraw the                         Treaty, Regulation No 17/62 and/or general legal
'national' objections set out in the statement of                             principles;
objections.
                                                                      C.      in the further alternative:
It also pleads infringement of the procedural rules, and more         (iii) (considerably) reduce the fine imposed on the
particularly of Articles 19 ( 1 ) and Regulation No 17 and                    applicant;