CELEX: C2000/063/31
Language: en
Date: 2000-03-04 00:00:00
Title: Case C-497/99 P: Appeal brought on 21 December 1999 by Irish Sugar plc against the judgment delivered on 7 October 1999 by the Third Chamber of the Court of First Instance of the European Communities in case T-228/97 between Irish Sugar plc and the Commission of the European Communities

4.3.2000              EN                     Official Journal of the European Communities                                      C 63/17
Appeal brought on 21 December 1999 by Irish Sugar plc                   2) Regarding the second limb of the applicant’s first plea, the
against the judgment delivered on 7 October 1999 by the                     Court of First Instance errs in law by holding that no
Third Chamber of the Court of First Instance of the                         infringement of the applicant’s defence rights occurred.
European Communities in case T-228/97 (1) between Irish
Sugar plc and the Commission of the European Communi-
                               ties                                         Because the definition of the relevant markets in the legal
                                                                            assessment of the Decision differed from the statement of
                                                                            objections and from previous decisional practice, the
                       (Case C-497/99 P)                                    abuses were not assessed in their proper context and the
                                                                            applicant was deprived of its right to comment fully
                                                                            thereon during the administrative procedure.
                         (2000/C 63/31)
                                                                        3) With respect to the third limb of the applicant’s first plea,
                                                                            the Court of First Instance applied the wrong test, viz. the
An appeal against the judgment delivered on 7 October 1999                  collective dominance test developed under the merger
by the Third Chamber of the Court of First Instance of the                  regulation where a structural assessment, using a prospec-
European Communities in case T-228/97 between Irish Sugar                   tive analysis of the reference market, is required. This is
plc and the Commission of the European Communities,                         not the correct test for retrospective behavioural assess-
was brought before the Court of Justice of the European                     ment under Article 86 of the EC Treaty (now Article 81
Communities on 21 December 1999 by Irish Sugar plc, a                       EC).
company incorporated under Irish law, represented by Alex-
ander Böhlke, of the Brussels and Frankfurt am Main Bars,
with an address for service in Luxembourg at the Chambers of
Victor Elvinger, 31, Rue d’Eich.                                        (1) OJ C 318 of 18.10.1997, p. 29.
The Appellant asks the Court:
— that the judgment of the Court of First Instance of
    7 October 1999 in Case T-228/97 Irish Sugar v. Com-
    mission be set aside in so far as it dismisses the applicant’s
    action (paragraph 3 of the operative part) and orders the
    applicant to pay its own costs and two thirds of the
    Commission’s costs (paragraph 4 of the operative part);             Reference for a preliminary ruling by the Oberste Ge-
                                                                        richtshof, Austria by order of that court of 9 November
                                                                        1999 in the case of Margrith Petersilge née Lackner against
— that Commission Decision 97/624/EC of 14 May 1997                      Sozialversicherungsanstalt der gewerblichen Wirtschaft
    relating to a proceeding pursuant to Article 86 of the EC
    Treaty (IV/34.621, 35.059/F-3 — Irish Sugar plc), (OJ
    1997 L 258, p. 1), in its form following from the                                           (Case C-511/99)
    aforementioned judgment, be annulled;
                                                                                                 (2000/C 63/32)
— that the Commission pay the remainder of the costs of
    Case T-228/97 and those of this appeal.
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Oberste Gerichtshof,
                                                                        Austria (Supreme Court, Austria) of 9 November 1999,
Pleas in law and main arguments                                         received at the Court Registry on 28 December 1999, for a
                                                                        preliminary ruling in the case of Margrith Petersilge née
                                                                        Lackner against Sozialversicherungsanstalt der gewerblichen
1) In dealing with the first limb of the applicant’s first plea,        Wirtschaft on the following question:
    the Court of First Instance, at one and the same time,
    rejected the argument that the operative part of the
    Commission Decision of 14 May 1997 was incomplete                   On a proper construction, does Article 10(a) of Council
    and the Commission’s defence that the Decision, for                 Regulation (EEC) No 1408/71 (1) on the application of social
    the period before February 1990, established both an                security schemes to employed persons, to self-employed
    individual dominant position of the applicant and, in               persons and to members of their families moving within the
    the alternative, a joint dominant position with Sugar               Community, as amended and updated by Council Regulation
    Distributors Ltd (SDL).                                             (EEC) No 2001/83 (2) of 2 June 1983, as subsequently amended
                                                                        by Council Regulation (EEC) No 1247/92 (3) of 30 April 1992,
                                                                        read in conjunction with Annex IIa, encompass the care
    The rejected arguments being mutually exclusive, the                allowance provided for by the Bundespflegegeldgesetz (Austri-
    Court’s position lacks in logic and breaches the rule of law.       an Federal Care Allowance Act) and does such care allowance