CELEX: C1996/064/34
Language: en
Date: 1996-03-02 00:00:00
Title: Action brought on 15 December 1995 by AssiDomän Kraft Products AB and six other wood pulp companies against the Commission of the European Communities (Case T-227/95)

No C 64/ 16           EN                   Official Journal of the European Communities                                      2 . 3 . 96
Pleas in law and main arguments adduced in support:                   Action brought on 15 December 1995 by AssiDoman Kraft
                                                                      Products AB and six other wood pulp companies against the
                                                                                   Commission of the European Communities
The applicants, two operators of discotheques established in
France and the trade organization of which they are                                             ( Case T-227/95 )
members, contest the Decision of the Commission of                                                 ( 96/C 64/34 )
13 October 1995 , which in their view does not comply with
the judgment of the Court of First Instance of 24 January in                             (Language of the case: English)
Case T-5/93 Tremblay . In that judgment, the Court of First
Instance annulled the Decision of the Commission of
12 November 1992 concerning an agreement between the                  An action against the Commission of the European
copyright-management societies in the other Member                    Communities was brought before the Court of First
States, which had resulted in Sacem abusing its dominant              Instance of the European Communities on 15 December
position by imposing excessive and discriminatory tariff              1995 by AssiDoman Kraft Products AB and six other wood
levels, in so far as that Decision 'rejects the applicants '          pulp companies, represented by John Pheasant, Solicitor
allegation that the market has been partitioned as a result of        and Christophe Raux, Avocat, with an address for service in
an alleged agreement beteween Societe des Auteurs,                    Luxembourg at the Chambers of Loesch & Wolter, 1 1 Rue
Compositeurs et Editeurs de Musique and the                           Goethe .
copyright-management societies in the other Member
States '.
                                                                      The applicants claim that the Court should:
After resuming, in a purely formal manner, its examination            — annul the Commission Decision of 4 October 1995 ,
of that part of the complaint, the Commission officially
rejected it on 23 June 1995 on the basis of Article 6 of              — order the Commission to take all necessary steps to
Regulation ( EEC ) No 99/63 . Despite the observations                     comply with the judgment of the Court of Justice in
submitted by the applicants, the defendant institution                     Joined Cases . C-89, 104 , 114, 116 , 117 and
repeated its position in the contested Decision . According to             125—129/85 A. Ahlstrom Oy v. Commission of
the Commission, it is solely for the national courts to assess             31 March 1993 and, in particular, to repay to the
whether a concerted practice exists; they may of course                    applicants the fines paid by each of them or their
resort to a reference for a preliminary ruling under                       predecessors in title respectively, in the amounts set out
Article 177 .                                                              at Annex 6 thereto,
                                                                      — order the Commission to pay interest on the said sums
The applicants maintain, first, that it is apparent from the               at
contested Decision that the Commission has not complied
with the requirements of the Court of First Instance and that                ( i ) the prevailing EMCF and EMI rates plus 1,5%
it did not in fact proceed to carry out an inquiry and the                          from the date on which the fines were paid by the
active investigations necessitated by the abovementioned                            Swedish addressees; or
judgment of 24 January 1995 . It has not, therefore,
complied with the obligations incumbent on an institution                  ( ii ) the prevailing base lending rate of the Banque
whose Act has been declared void, by taking the necessary                           Nationale de Belgique plus 1 % from the date on
measures under Article 176 to comply with the                                       which the fines were paid by the Swedish
judgment.                                                                           addressees,
The Commission was penalized by the Court because what                     in the amounts set out in Annex 9 to the application and
it did, and what it claimed to have done, was inadequate. It               continuing until the principal sum of the fines is repaid
was not open to it merely to act in the same way after the                 by the Commission, and
judgment was given as before . The Court annulled the
 Decision of the Commission because it did not constitute an          — order the Commission to pay the applicants' costs .
 adequate response to the complaint of partitioning made
 against the agreement between copyright-management                   Pleas in law and main arguments adduced in support:
 societies . The Court did not annul the Decision and remit
 the matter to the Commission merely for that institution to          The applicants, or their predecessors in title, are among the
 refrain from carrying out an inquiry which, by reason of             addressees of the Commission Decision 85/202/EEC of
 their limited territorial jurisdiction, the national courts do        19 December 1984 relating to a proceeding under Article 85
 not have the means to undertake .
                                                                      of the EC Treaty (IV/29.725 — Wood Pulp ) by which the
                                                                       Commission imposed fines ranging from ECU 50 000 to
 The applicant further regards that conduct as a breach of the         ECU 500 000 . The applicants, who had never accepted the
 duty to provide a statement of reasons, as well as a misuse of        allegations of infringements, did not bring an application for
 powers .                                                              annulment of this Decision and paid the fines to the
                                                                       Commission. Upon application by other addressees of the
                                                                       Decision, the Court of Justice, by judgment of 31 March
                                                                       1993 in Joined Cases 89, 104 , 114 , 116 , 117 and 125 to
                                                                       129/85 , A. Ahlstrom Oy v. Commission, a number of the
 ---pagebreak--- 2 . 3 . 96            EN                  Official Journal of the European Communities                                     No C 64/ 17
infringements alleged by the Commission were found not to            — order the Council and/or Commission to pay the costs
exist by the Court which annulled in whole or in part the                  incurred by the applicant in making this application .
fines imposed by the Commission . Pursuant to that
judgment, the applicants requested the Commission to
                                                                     Pleas in law and main arguments adduced in support:
reimburse the fines paid by them . By the contested letter of
4 October 1995 signed by the Commissioner for
Competition, the Commission refused on the ground that               The applicant is a small family company which has been
the decision imposing the fines was still standing with regard       carrying on the business of a fur merchant since it was
to the applicants.                                                   established in the United Kingdom in 1963 , the great
                                                                     majority of the applicant's business ( about 80% ) depends
                                                                     on the use of fur pelts originating in and imported from the
The applicants submit that the effect of the Court's                 United States of America and Canada .
annulment of a Community Act is that the Act is void erga
omnes and ex tunc. The institution is thereafter required to
                                                                     Article 3 ( 1 ) of Council Regulation ( EEC ) No 3254/91 of
consider or reconsider the position of all interested persons
                                                                     4 November 1991 prohibiting the use of leghold traps in the
in the light of the grounds and operative part of the Court's
                                                                     Community and the introduction into the Community of
judgment. The institution is also obliged to effect a restitutio
                                                                     pelts and manufactured goods of certain wild animal species
in integrum. This requires the restoration of the status quo
                                                                     originating in countries which catch them by means of
ante and the restitution of any unjust enrichment arising
                                                                     leghold traps or trapping methods which do not meet
from the invalid Act, and includes a duty to pay interest on
                                                                     international humane trapping standards ( OJ No L 308 ,
any monies held pursuant to the invalid Act.
                                                                     1991 , p. 1 ) purports to prohibit the import into the
                                                                     Community of pelts of certain species ( including musk rat )
In the light of the Court's judgment, Articles 1(1 ) and 1 ( 2 )     originating in certain third countries ( the 'import ban'). The
of the Wood Pulp Decision do not provide a lawful basis for          wording of Article 3(1 ), taken literally, suggests that that
the imposition of fines on any of the addressees referred to in      ban will have effect as from 1 January 1996 , and will apply
Articles 1 ( 1 ) or 1 ( 2 ). Any fines paid in respect of the        to fur pelts from all third countries . The mere prospect of
allegations contained in Articles 1(1 ) and 1 ( 2 ) cannot be        such a ban and the uncertainty of the manner of its
lawfully held by the Commission . The fines must therefore           implementation have already caused serious and continuing
be repaid with interest at a rate which reflects the value to        financial loss to the applicant. As and when the ban takes
the Commission of possession over a period of 10 years of            effect ( whether on 1 January 1996 or later ), the ban will
the fines paid by the Swedish addressees . Only thus can the         cause even more severe financial loss, of a nature and extent
status quo ante be restored.                                         that is likely to be such as effectively to destroy the
                                                                     applicant's business .
                                                                     The applicant submits that such losses are and will be the
                                                                     result of unlawful conduct on the part of the Council and/or
                                                                     Commission :
                                                                     ( a ) the Commission has acted unlawfully in adopting and
Action brought on 15 December 1995 by S. Lehrfreund                          implementing the import ban under Regulation ( EEC )
Limited against Council of the European Union and                            No 3254/91 in that:
          Commission of the European Communities
                        Case T-228/95 )                                          ( i ) the Council lacked competence under the EC
                            96/C 64/35 )                                               Treaty to adopt the import ban in Regulation
                                                                                       ( EEC ) No 3254/91 ;
                (Language of the case: English)                                ( ii ) the import ban in Regulation ( EEC ) No 3254/91
                                                                                       is contrary to the principle of proportionality;
 An action against the Council of the European Union and
 the Commission of the European Communities was brought                      ( iii ) the import ban in Regulation ( EEC ) No 3254/91
 before the Court of First Instance of the European                                    was at the time of its adoption in breach of the
 Communities on 15 December 1995 by S. Lehrfreund                                      GATT and is now in breach of the WTO
 Limited, represented by Nicholas Forwood QC and Mark                                  Agreement.
 Hoskins, Barrister, with an address for service in
 Luxembourg at the Chambers of Thill & Pauly, 1 1 Avenue              ( b ) the Commission has unlawfully failed to adopt the
 de la Gare, L-1611 .                                                        measures necessary to implement Regulation ( EEC )
                                                                             No 3254/91 , which would have identified third
                                                                             countries from which fur pelts could be imported and
 The applicant claims that the Court should :                                the necessary procedures for certifying the origin of
                                                                             such pelts;
 — order that the Council and/or Commission is liable in
      damages to the applicant under Articles 178 and 215 of          ( c ) the acts and omissions of the Commission and/or
      the EC Treaty, the quantum of such damages to be                        Council having created a situation of legal uncertainty
      assessed, and                                                          as to the scope and effective date of the import ban,