CELEX: C1998/299/23
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 23 July 1998 by Cascades SA against the judgment delivered on 14 May 1998 by the Third Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-308/94 between Cascades SA and the Commission of the European Communities (Case C-279/98 P)

26.9.98               EN                 Official Journal of the European Communities                                          C 299/13
Pleas in law and main arguments adduced in support:                 Ð Infringement of the principle of equal treatment:
                                                                         by departing in the contested decision from the
Ð Infringement of Article 5(2)(c) of Council Regulation
                                                                         Commission's guidelines (3) without stating the reasons
    (EEC) No 729/70 of 21 April 1970 on the financing of
                                                                         for such a departure, the Commission infringed the
    the common agricultural policy (2):
                                                                         principle of equal treatment even though these
                                                                         guidelines are not, as such, binding,
    The verifications for the 1992 and 1993 financial
    years cannot lead to the corrections of the expenditure         Ð Infringement of the requirement to state reasons.
    in the 1994 financial year. As regards the verifications
    in 1994, the Commission cannot, on the basis of the
                                                                    (1) OJ L 163, 6.6.1998, p. 28.
    small number of checks carried out by the                       (2) Official Journal, English Special Edition 1970 (I), p. 218.
    Commission and the small number of irregularities               (3) Communication to the EAGGF Committee, VI/216/93, of
    thereby found, take the view that the Netherlands                   3 June 1993, Calculation of the financial consequence when
    control scheme as a whole displays material defects                 preparing decisions on the clearance of accounts in the context
    which justify a flat-rate reduction of 10 % for the                 of the EAGGF Guarantee' section.
    cereals sector and 5 % for the beef and veal sector,
Ð Infringement of Article 5(2)(c) of Regulation (EEC)
    No 729/70, the principle of good faith cooperation
    and the principle of audi alteram partem:
                                                                    Appeal brought on 23 July 1998 by Cascades SA against
                                                                    the judgment delivered on 14 May 1998 by the Third
                                                                    Chamber (Extended Composition) of the Court of First
    The Commission did not carry out a dialogue in good
                                                                    Instance of the European Communities in Case T-308/94
    faith with the Netherlands' authorities concerning the
                                                                    between Cascades SA and the Commission of the
    procedure leading up to the clearance of the accounts
                                                                                         European Communities
    for 1994. In its report of 13 February 1997 the
    mediation body states that the Commission objected                                      (Case C-279/98 P)
    to every adjustment to its position. The Commission's                                      (98/C 299/23)
    refusal seriously to have regard to the arguments
    which were submitted by the Netherlands' authorities
    in support of their position is also clear from the
                                                                    An appeal against the judgment delivered on 14 May
    official notification of 28 June 1996. The Commission
                                                                    1998 by the Third Chamber of the Court of First Instance
    confines itself to repeating the arguments which it had
                                                                    of the European Communities in Case T-308/94 between
    previously submitted. It refers briefly to the
                                                                    Cascades SA and the Commission of the European
    improvements which have taken place in the
                                                                    Communities was brought before the Court of Justice of
    Netherlands but does not in any way deal with the
                                                                    the European Communities on 23 July 1998 by Cascades
    arguments on which the Netherlands' authorities have
                                                                    SA, represented by Jean-Yves Art, of the Brussels Bar, with
    requested the Commission to submit a view. The
                                                                    an address for service in Luxembourg at the Chambers of
    Commission does not allege that the arguments are
                                                                    Arendt & Medernach, 8Ð10 rue Mathias Hardt.
    incorrect or irrelevant, let alone give reasons for such
    a view, but merely ignores those arguments,
                                                                    The appellant claims that the Court should:
Ð Errors in the summary report:
                                                                    Ð set aside the judgment delivered by the Court of First
                                                                         Instance on 14 May 1998 in Case T-308/94 Cascades
                                                                         SA v. Commission (1),
    the Netherlands control system was in accordance
    with the Community rules then in force; there is no
    reason to apply Commission Regulation (EC) No 2221/             Ð grant the form of order sought before the Court of
    95 by anticipation,                                                  First Instance of the European Communities by
                                                                         Cascades SA (2),
Ð Infringement of the principle of legal certainty:
                                                                    Ð order the Commission to pay the whole of the costs,
                                                                         both of the proceedings before the Court of First
    contrary to the express undertaking that financial                   Instance and of those before the Court of Justice,
    consequences would follow from defects in national
    control systems only from 1 July 1994, the                      in the alternative:
    Commission made considerable flat-rate corrections
    over the 1994 financial year. Furthermore, when
    making the flat-rate corrections, the Commission                Ð if the Court takes the view that the state of the
    failed to take mitigating circumstances into account,                proceedings does not allow final judgment to be given,
 ---pagebreak--- C 299/14             EN                  Official Journal of the European Communities                                    26.9.98
    refer the case back to the Court of First Instance for          Appeal brought on 23 July 1998 by Moritz J. Weig
    judgment,                                                       GmbH & Co. KG against the judgment delivered on
                                                                    14 May 1998 by the Third Chamber (Extended
                                                                    Composition) of the Court of First Instance of the
Ð order the costs to be reserved.                                   European Communities in Case T-317/94 Moritz J. Weig
                                                                    GmbH & Co. KG and Commission of the European
                                                                                             Communities
Pleas in law and main arguments adduced in support:
                                                                                         (Case C-280/98 P)
                                                                                            (98/C 299/24)
Ð Contradictory reasoning: the Court of First Instance
    has not drawn the appropriate conclusions from its
    own findings of the inadequacy of the statement of              An appeal against the judgment delivered on 14 May
    reasons for the Commission's decision as regards the            1998 by the Third Chamber (Extended Composition) of
    determination of the general level of fines. In finding         the Court of First Instance of the European Communities
    that the Commission's decision did not satisfy the              in Case T-317/94 between Moritz J. Weig GmbH & Co.
    requirements of Article 190 of the Treaty, the Court            KG and Commission of the European Communities was
    was under an obligation to draw all the appropriate             brought before the Court of Justice of the European
    conclusions from that finding and therefore to annul            Communities on 23 July 1998 by Moritz J. Weig GmbH
    the measure at issue. The fact that the Commission              & Co. KG, represented by Thomas Jestaedt and Verena
    was unaware of the precise extent of its duty to state          von Bomhard, Rechtsanwälte, Boesebeck Droste, 9 Avenue
    reasons cannot constitute a ground for refusing to              des Gaulois/Gallierslaan, B-1040 Brussels, with an address
    annul the Decision.                                             for service in Luxembourg at the Chambers of Philippe
                                                                    Dupont, Arendt & Medernach, 8Ð10 rue Mathias Hardt,
                                                                    L-2010 Luxembourg.
    To accept generally that the reasons for a decision may
    validly be furnished in proceedings before the                  The appellant claims that the Court should:
    Community judicature renders the obligation to state
    reasons meaningless. Furthermore, the Commission                1. set aside the judgment of the Court of First Instance of
    cannot, without infringing the principle of collegiality,           14 May 1998 (1) and declare void Article 3 of
    give the reasons for its decision in the course of the              Commission Decision 94/601/EC (2) of 13 July 1994
    proceedings before the Court,                                       relating to a proceeding under Article 85 of the EC
                                                                        Treaty (IV/C/33.833 Ð Cartonboard);
Ð Erroneous interpretation of the concept of effects of
    the infringement on the market'; infringement of the            2. order the Commission to pay the appellant's costs
    principle of proportionality: for the purpose of                    before the Court of First Instance and the Court of
    determining the gravity of the infringement, regard                 Justice.
    should be had only to the effect on actual prices (in
    comparison with those which might have occurred in              Alternatively: that the Court should:
    the absence of collusion). The restrictive impact on
    competition relates only to the implementation of the           1. set aside the judgment of the Court of First Instance of
    agreement by the undertaking; although its existence is             14 May 1998 and fix at ECU 1 million the fine
    a necessary condition for the appearance of an actual               imposed in Article 3 of Commission Decision 94/601/
    effect of the infringement on the market, it does not               EC of 13 July 1994 relating to a proceeding under
    necessarily follow that the agreement had an actual                 Article 85 of the EC Treaty (IV/C/33.833 Ð
    impact on prices or on the other competitive                        Cartonboard);
    conditions of the market. The Court of First Instance
    infringed the principle of proportionality in upholding         2. order the Commission to pay two thirds of the
    the level of the fine while finding that the Commission             appellant's costs before the Court of First Instance and
    had not proved that the infringement had affected                   the whole of the appellant's costs before the Court of
    cartonboard prices,                                                 Justice.
                                                                    Pleas in law and main arguments adduced in support:
Ð Infringement of the principle of equal treatment: the
    Court of First Instance held Cascades responsible for
    the conduct of two subsidiaries prior to their                  Ð The contested judgment wrongly failed to annul the
    acquisition. On the other hand, Mayr-Melnhof (Case                  fine on the ground that the statement of reasons for it
    T-347/94) was not held responsible for the conduct of               was inadequate. The fact that the Commission was
    its subsidiary Eerbeek in respect of the period prior to            prepared, during the proceedings before the Court, to
    its acquisition.                                                    provide all information concerning the method of
                                                                        calculating the fines should not have been taken into
                                                                        account when considering the adequacy of the
(1) OJ C 209, 4.7.1998, p. 30.                                          statement of reasons.
(2) OJ C 351, 10.12.1994, p. 16.
                                                                    Ð Infringement of the principle of equal treatment and
                                                                        Article 15(2) of Council Regulation No 17 and