CELEX: C1995/119/42
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 23 February 1995 by Heracles General Cement Company against the Commission of the European Communities (Case T-57/95)

No C 119/20              EN                 Official Journal of the European Communities                                    13 . 5 . 95
        4. breach of the principle of equitable treatment of the                practices and monopolies, in which it is understood
             undertakings with respect to the ecu exchange rate                 but cannot be proven by the applicant, that the
             to be applied for the fines .                                      following paragraph appears (which does not
                                                                                appear in the adopted Decision ):
                                                                                'Account should be taken of the Greek producers '
                                                                                argument that they were constrained by
Action brought on 23 February 1995 by Heracles General                          circumstances to sign the contracts with certain
Cement Company against the Commission of the European                           European producers on the sale of cement and
                             Communities                                        clinker. Consequently, the Commission considers
                           (Case T-57/95 )                                      that it should not impose fines on Titan and
                                                                                Heracles in respect of the agreements and concerted
                            ( 95/C 119/42 )                                     practices relating to the purchases of Greek cement
                                                                                and clinker referred to to in point 56 .'
                  (Language of tbe case: English)
                                                                           and
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 23 February by                 — order that the Commission pay the applicant's costs.
Heracles General Cement Company, represented by
Mr Kostas Loukopoulos, Mr Sebastian Farr and Mr Ciaran
Walker with an address for service in Luxembourg at the                Pleas in law and main arguments adduced in support:
chambers of Me Jos Stoffel, 8 , Rue Willy Goergen, L-1636
Luxembourg.                                                            1 . The Commission's Decisions was adopted in breach of a
                                                                           number of essential procedural requirements, in
The applicant claims that the Court should :                               particular, the right to a fair hearing.
— review under Article 173 of the EC Treaty the legality of
    the Commission Decision of 30 November 1994 ( J ) and              2 . The applicant was denied an adequate opportunity to
    declare it void or annul it under Article 174 of the EC                make its views on the objections raised against it known
    Treaty, on the grounds of infringement of the EC Treaty                to the Commission. Neither the applicant's response to
    and the rules of law relating to its application and of                the Statement of Objections nor those minutes of the
    infringement of essential procedural requirements,                     oral hearing which relate to interventions made by the
                                                                           applicant was translated from the Greek original within
— cancel under Article 172 of the EC Treaty the fine                       the Commission. Accordingly, the issues raised by the
    imposed on the applicant, or to significantly reduce                   applicant in these documents were not properly taken
    it:                                                                    into account.
      ( i ) in the event that the Court decides that the
                                                                       3 . The Commission's Decision was adopted in breach of
            application under Article 173 is well-founded, the
                                                                           Article 190 of the EC Treaty.The European Commission
            fine should be cancelled;
                                                                           has failed to provide adequate reasoning to support its
    (ii) if, on the other hand, the Court were to uphold the               central conclusions, in particular, that:
            Decision, in whole or in part, the applicant submits
            that the fine should nevertheless be substantially             — the various arrangements to which the applicant was
            reduced,                                                           a party amounted to a 'single and continuous
                                                                               agreement',
— order, under Articles 65 and 66 of the Rules of
    Procedure of the Court, the Commission to produce all
    internal notes, memoranda and draft documents                          — the applicant 'participated indirectly' in the
    prepared by Members of the Commission or Officials or                      Cembureau agreement,
    the Commission, minutes of the Commission's meetings
    and opinions of the Advisory Committee on restrictive                  — the purpose of the contracts in which the applicant
    practices and monopolies, meetings relating to:                            was specifically involved (Holderbank, Lafarge,
                                                                               CBR, as mentioned above ) was to prevent direct
      (i ) the dissemination of the applicant's defence, as set                sales by the applicant on the European market.
            out in its response to the Statement of Objections
            and minutes of the oral hearing, within the
            Commission and the Advisory Committee on                   4. The Commission's Decision was adopted in breach of
            restrictive practices and monopolies, in languages             the fundamental Community principle of non­
            other than the original Greek version;                         discrimination, in that the Commission has failed to
                                                                           assess the applicant's circumstances individually,
    ( ii ) the calculation of the amount of the applicant's fine,          despite the fact that the applicant's circumstances were
            in particular the Commission's draft Decisions                 radically different to those of the other addressees of the
            presented to the Advisory Committee on restrictive             Decision.
 ---pagebreak--- 13 . 5 . 95          LM                    Official Journal of the European Communities                              No C 119/21
5 . In assessing the role of the applicant, the Commission            Pleas in law and main arguments adduced in support:
     failed to properly appreciate the fact that the applicant
     was a victim of a continued abuse of a collective                The applicant relies upon the following grounds:
     dominant position by the members of the European
     Task Force, a grouping of the major European                       I. Breach of essential procedural requirements:
     producers, whose aim was to prevent exports from
     Greece to the rest of the Community.                                  1 . Infringement of Article 19 of Regulation No 17,
                                                                               Articles 2, 3 and 4 of Regulation No 99/63 and
6. The Commission has not sufficiently shown in law that                       Article 3 of Regulation No 1 on the following
     the applicant participated in a 'single and continuous'                   grounds:
     agreement relating to the principle of non-transhipment
     to home markets .                                                         (a ) Sending a Statement of Objections lacking
                                                                                     clarity, vitiated by lack of coherency and
                                                                                     unclear as to the period to which the
7. The Commission has incorrectly interpreted the
                                                                                     objections relate;
     activities of the Export Policy Committee and the role of
     the applicant within it.                                                  ( b ) Incomplete notification of the Statement of
                                                                                     Objections and refusal to give access to the
8 . The fine imposed on the applicant is based on an                                 whole of the file;
     erroneous assessment of the facts and clear breach of the
     rule of law. In any event it is excessive.                                (c) Inadequate access to the file;
(!) OJ No L 343 , 30 . 12 . 1994, p. 1 .                                       ( d ) Notification of documents not written in
                                                                                     Spanish;
                                                                               (e) Failure to be allowed to participate in the
                                                                                     hearing;
                                                                               ( f) Substantial amendment of the objections
                                                                                     without sending a new Statement of
Action brought on 23 February 1995 by Corporacion                                    Objections and without granting the parties
Uniland SA against the Commission of the European                                    the opportunity to state their opinion in that
                            Communities
                                                                                     regard.
                          (Case T-58/95 )
                           ( 95/C 119/43 )                                 2. Infringement of Article 1 0 of Regulation No 1 7: thé
                                                                               Commission did not inform the Advisory
                                                                               Committee of the amount of the fines to be
                 (Language of the case: Spanisb)                               imposed by the Decision.
An action against the Commission of the European                       II. Improper application of Article 85 of the EC
Communities was brought before the Court of First                          Treaty:
Instance on 23 February 1995 by Corporacion Uniland SA
represented by Luis de Carlos Bertrân and Edurne Navarro                   1 , as regards the so-called 'Cembureau Agreement',
Varona, of the Barcelona Bar, with an address for service                      the Commission has failed to prove either the
in Luxembourg at the Chambers of Bonn & Schmitt,                               existence, or the unitary and continuous nature, or
62 Avenue Guillaume,                                                           the duration of the alleged agreement;
                                                                           2, as regards the 'European Task Force', the
The applicant claims that the Court should:                                     Commission has failed to prove that the ETF
                                                                               constituted an agreement contrary to Article 85 of
— annul in whole Commission Decision 94/815/EC of                              the EC Treaty, or that the applicant participated in
     30 November 1994 relating to a proceeding under                           the agreement setting up the ETF, or the duration of
     Article 85 of the EC Treaty ( Cases IV/33.126 and                         the alleged agreement;
     33.322 — Cement),
                                                                           3 , as regards Interciment, the Commission has failed
                                                                                to prove either that the applicant was party to the
— in the alternative, annul Articles 1 , 4 ( 1 ), 4 ( 2 ) and 4 ( 3 )
                                                                                agreement relating to the constitution of
     (a ) and 9 of the aforementioned Decision in so far as they                Interciment or the duration of such agreement;
     affect the applicant,
                                                                           4, as regards the defence measures for the Italian
— as a subsidiary plea, reduce the amount of the fine                           market, the Commission has failed to prove the
     imposed on the applicant, set out in Article 9 of the                      existence of concerted practices intended to avoid
     Decision,                                                                  Calestruzzi being a customer for Greek producers
                                                                                or the participation of the applicant in the
— order the Commission to pay the costs .                                       aforementioned alleged practices.