CELEX: C1999/086/50
Language: en
Date: 1999-03-27 00:00:00
Title: Action brought on 21 January 1999 by Cordis Obst- und Gemüsegrosshandel GmbH against the Commission of the European Communities (Case T-18/99)

C 86/28               EN                    Official Journal of the European Communities                                27.3.1999
Pleas in law and main arguments adduced in support:                    Instance of the European Communities on 20 January
                                                                       1999 by KE KELIT Kunststoffwerk mbH, Linz (Austria),
The applicant was fined ECU 1 500 000 by the                           represented by the firm of Grassner, Lenz, Thewanger and
Commission for participating in a cartel between                       Partners, Rechtsanwälte, Linz, with an address for service
manufacturers and distributors of district heating pipes (1).          in Luxembourg at the Chambers of Messrs Loesch and
                                                                       Wolter, 11 Rue Goethe.
The applicant pleads:
                                                                       The applicant claims that the Court should:
Ð infringement of the right to a proper hearing;
Ð infringement of the duty to state reasons under                      1. annul Commission Decision C(1998) 3117 final of
     Article 190 of the EC Treaty;                                          21 October 1998 concerning a proceeding under
                                                                            Article 85 of the EC Treaty (Case IV/35.691/E-4, Fern-
                                                                            wärmetechnik-Kartell), as amended by Commission
Ð infringement of the principles of non-retroactivity and                   Decision C(1998) 3415 final of 6 November 1998, in
     the protection of legitimate expectations, and of the                  so far as it concerns the applicant;
     duty of the administration to act in accordance with
     statute;
                                                                            or, in the alternative,
Ð abuse of discretion in applying the guidelines on
     fines (2);
                                                                       2. annul the fine imposed on the applicant;
Ð abuse of discretion and discrimination in applying the
     rules whereby undertakings cooperating with the
     Commission during its investigation into a cartel may                  or, in the alternative,
     be exempted from fines (3);
                                                                       3. reduce the fine imposed on the applicant;
Ð misapplication of heading D of the above rules;
Ð infringement of the principles of equal treatment and                4. order the Commission to pay the costs in any event.
     proportionality, and of the prohibition of arbitrary
     action;
                                                                       Pleas in law and main arguments adduced in support:
Ð inaccuracy of the facts alleged;
                                                                       The applicant was fined ECU 360 000 by the Commission
Ð incorrect assessment of the turnover figures relevant to
                                                                       for participating in a cartel between manufacturers and
     determining the amount of the fine;
                                                                       distributors of district heating pipes. (1)
Ð fixing of an excessive interest rate; and
                                                                       The pleas in law and main arguments are essentially the
Ð erroneous legal assessment.                                          same as in Cases T-9/99 and T-16/99.
(1) See Case T-9/99.                                                   (1) See Case T-9/99.
(2) Guidelines on the method of setting fines imposed pursuant to
    Article 15(2) of Regulation No 17 and Article 65(5) of the
    ECSC Treaty (OJ C 9, 14.1.1998, p. 3).
                                                                       Action brought on 21 January 1999 by Cordis Obst- und
                                                                       Gemüsegrosshandel GmbH against the Commission of the
Action brought on 20 January 1999 by KE KELIT Kunst-                                        European Communities
stoffwerk mbH against Commission of the European
                         Communities                                                            (Case T-18/99)
                        (Case T-17/99)                                                          (1999/C 86/50)
                        (1999/C 86/49)
                                                                                       (Language of the case: German)
                (Language of the case: German)
An action against the Commission of the European                       An action against the Commission of the European
Communities was brought before the Court of First                      Communities was brought before the Court of First
 ---pagebreak--- 27.3.1999             EN                 Official Journal of the European Communities                                      C 86/29
Instance of the European Communities on 21 January                  in the same position as if the reference period giving rise
1999 by Cordis Obst- und Gemüsegrosshandel GmbH,                    to entitlement had covered the years 1995 to 1997. The
Ostrau (Germany), represented by Gert Meier,                        applicant maintains that Article 6(3) of that regulation
Rechtsanwalt, Jakordenstraûe 10, Köln.                              should also be annulled as an ancillary because reduction
                                                                    of the quantity allocated was contrary to the GATT. The
                                                                    enactment of Community legislation contrary to the
The applicant claims that the Court should:                         GATT after final judgment by a legal organ of the WTO
                                                                    that an infringement had taken place represented a misuse
                                                                    of powers by the Commission giving rise to a right to
1. order the Commission to compensate the applicant for             compensation.
    its loss suffered as a result of
                                                                    In the applicant's view, however, compensation in kind
    (a) the Commission's adopting the years 1994 to 1996            through the issuing of import rights capable of serving as
         as the reference period for traditional operators,         a basis of reference for the future is possible in this case.
    (b) the quantity provisionally approved by the                  (1) OJ C 94, 28.3.1998, p. 27.
         competent authorities being reduced by application         (2) Commission Regulation (EC) No 2362/98 of 28 October 1998
         of the adjustment coefficient;                                 laying down detailed rules for the implementation of Council
                                                                        Regulation (EEC) No 404/93 regarding imports of bananas
                                                                        into the Community (OJ L 293, 31.10.1998, p. 32).
2. order the Commission, in so far as the quantities to
    which the applicant is legitimately entitled have been
    wrongly reduced, to make good that loss by allocating
    to it additional licences in the future (compensation in
    kind);
                                                                    Action brought on 21 January 1999 by DKV Deutsche
                                                                    Krankenversicherungs AG against the Office for
3. order the Commission to pay the costs.
                                                                    Harmonisation in the Internal Market (trade marks and
                                                                                                designs)
Pleas in law and main arguments adduced in support:                                         (Case T-19/99)
                                                                                            (1999/C 86/51)
The applicant has already brought an action against the
Commission in Case T-612/97 (1), challenging the                                    (Language of the case: German)
Commission's decision refusing the applicant additional
licences by way of compensation for hardship.
                                                                    An action against the Harmonisation in the Internal
                                                                    Market (trade marks and designs) was brought before the
The applicant now claims compensation on the ground                 Court of First Instance of the European Communities on
that, after the entry into force of Regulation (EC)                 21 January 1999 by DKV Deutsche Krankenversicherungs
No 2362/98 (2), it applied for the allocation of a reference        AG,       of Cologne,       represented     by Stephan        v.
quantity of 2 591 427 kg of bananas for the years 1994 to           Petersdorff-Campen, of Rechtsanwälte von Rospatt, von
1996, but the quantity allocated was reduced by                     der Osten, Prost, Düsseldorf, with an address for service
application of the adjustment coefficient.                          in Luxembourg at the Chambers of Marc Loesch, Loesch
                                                                    and Wolter, 11 Rue Goethe, Luxembourg.
The applicant argues that by adopting the years 1994 to
1996 as the reference period for the year 1999, the                 The applicant claims that the Court should:
Commission unlawfully put the reference period back by a
year, given that in accordance with Article 19(2) of
                                                                    Ð alter the contested decision and order the defendant to
Regulation (EEC) No 404/93 the reference period was the
                                                                         register the sign COMPANYLINE, application number
period from 1995 to 1997. Imports in 1994 had already
                                                                         319038, for the services claimed in class 36 (insurance
been used three times for reference purposes, namely in
                                                                         bodies; financial bodies) as a Community trade mark
the years 1996 to 1998. The applicant maintains that the
                                                                         in the register of Community trade marks subject to a
putting back of the reference period is arbitrary, a misuse
                                                                         disclaimer by the applicant that it will not claim any
of powers and insufficiently reasoned under Article 190 of
                                                                         exclusive rights in the constituent elements (namely
the EC Treaty. It also alleges infringement of Article I:1 of
                                                                         COMPANY and LINE) of the sign;
the GATT, Articles II and XVII of the GATS and
Articles I:2 and I:3 of the WTO Agreement on Licences.
                                                                         In the alternative
Moreover, as an ancillary, Article 4(2) of Regulation (EC)
No 2362/98 should be annulled for arbitrariness, lack of                 to annul the contested decision.
reasoning and misuse of powers, and the applicant placed