CELEX: C1995/119/50
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 27 February 1995 by Hornos Ibéricos Alba, SA ('Hisalba') against the Commission of the European Communities (Case T-69/95)

No C 119/26            EN                  Official Journal of the European Communities                                    13 . 5 . 95
         ( b ) The defendant is wrong to regard the                   The applicant claims that the Court should:
               establishment of Interciment SA as constituting
               a   permanent restriction      on competition.         — annul         Commission         Decision  94/815/EC        of
               Interciment SA was established as a subsidiary             30 November 1994 (*) in so far as it affects the
               of the applicant and was subsequently                      applicant,
               continued as no more than a shell company
               until its dissolution in March 1993 . As a             — in the alternative, annul the fine imposed on the
               'sleeping company', it was never active and                applicant,
               could never have generated any 'threat
               potential'. The participation of the single            — in the further alternative, reduce the amount of the fine
               temporary partner was discontinued in                      imposed on the applicant at the discretion of the Court
               November 1988 , with the result that any                   of First Instance, and
               infringements must be regarded as having been
               terminated by this date at the latest.                 — order the Commission to pay the costs .
         (c ) The applicant denies having ever concluded
               agreements in restraint of competition with the        Pleas in law and main arguments adduced in support:
               Greek producers Titan and Heracles. The
               relevant contracts with the Greek producers            The applicant relies upon the following grounds in support
               were concluded 'at arm's length', not by the           of its claims :
               applicant, but by its Spanish subsidiary
               'UMAR', which is not involved in the
               proceedings . The applicant also denies having           I. Breach of procedural guarantees . The applicant argues
                                                                            that its procedural rights have been seriously breached
               participated in concerted practices designed to
                                                                            for the following reasons:
               attract customers away from the Calcestruzzi
               undertaking.
                                                                            1 . Lack of clarity in the file;
         ( d ) The applicant denies having participated in a
               comprehensive cartel, the alleged Cembureau                  2. Defects in the Statement of Objections;
               agreement. The conduct of which it stands
               accused by the defendant ( even assuming it to               3 . Limited access to the file;
               be established ) is not of such kind as to prove
               participation in the alleged Cembureau                       4. Submission of illegible and erroneously cited
               agreement. The stratagem of a 'single and                        evidence and failure to translate certain documents
               continuous course of conduct' adopted to cover                   thereby impairing the applicant's right to a fair
               over the lack of evidence cannot obscure that
               fact.
                                                                                hearing.
    2 . In calculating the fine the defendant failed to take           II. Manifest errors in the assessment of the applicant's
        into account the fact that the infringements of which               conduct and failure to prove that its conduct infringed
        the applicant is accused are not serious                            Article 85 of the EC Treaty. The applicant contends
        infringements and that Interciment SA was no more                   that :
        than a sleeping company quite incapable of
        influencing market conditions. In any event, the                    1 . It was never involved in any agreement or
        defendant erred with regard to the assumed                              concerted practice concerning the so-called
        duration of the applicant's alleged infringements .                     ' Cembureau Principle';
                                                                            2 . The 'Export Policy Committee ' ( EPC) was not a
                                                                                vehicle for applying the so-called 'Cembureau
Action brought on 27 February 1995 by Hornos Ibéricos                           Agreement';
   Alba, SA ('Hisalba') against the Commission of the
                     European Communities                                   3 . The EPC was a legitimate forum for coordinating
                         (Case T-69/95 )                                        export activities and did not therefore constitute
                                                                                concerted action within the meaning of
                          ( 95/C 119/50 )                                       Article 85 ( 1 ).
                (Language of the case: Spanish)
                                                                      III. As a subsidiary plea, as regards the fine imposed, the
An action against the Commission of the European                            applicant contends that the Commission has made
Communities was brought before the Court of First                           manifest errors in assessing the seriousness and the
Instance on 27 February 1995 by Hornos Ibéricos, SA                         duration of the infringement alleged.
('Hisalba'), represented by Michael Schutte, of the Berlin
Bar, instructed by Audrey Stacey Winter and Luis Suârez de            (!) OJ No L 343 , 30 . 12 . 1994 , p . 1 .
Lezo Mantilla of the Madrid Bar, with an address for service
in Luxembourg at the Chambers of Axel Bonn, 62 Avenue
Guillaume,