CELEX: C1995/119/41
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 22 February 1995 by Asland SA against the Commission of the European Communities (Case T-55/95)

13 . 5 . 95         LJN.                   Official Journal of the European Communities                                No C 119/ 19
Pleas in law and main arguments adduced in support:                         Freedoms. In the view of the applicant, the procedure
                                                                            followed by the Commission in competition law is one
The applicant contends that the findings against the                        which may lead to the imposition of sanctions and, as
applicant of infringements of Article 85 are erroneous, being               such, should have the procedural guarantees which are
based on a materially incorrect appreciation of the facts and               characteristic of criminal proceedings, as is recognized
vitiated by manifest error of assessment.                                   in Member States where the administrative law
                                                                            provides for the imposition of penalties . None the less,
Further, or in the alternative, the applicant contends that                 in Community law the Commission is the body which
the Commissioin failed to observe essential procedural                      both investigates and makes decisions, with the power
requirements in that:                                                       to impose coercive sanctions on undertakings which
— the reasoning to support the findings of infringement                     are the subject of proceedings . Therefore the procedure
     against the applicant is inadequate, and/or                            lacks objectivity, contrary to Article 6 of the
                                                                            abovementioned Convention .
— the applicant was deprived of a proper opportunity to be
     heard in so far as certain findings of infringement in the         II. Infringement of rights of the defence. The applicant
     Decision were not set out in the Statement of Objections               maintains that its rights were infringed in the course of
      served on the applicant in the administrative                         the administrative procedure inasmuch as:
     proceedings.
                                                                            1 , it was not given access to the full file;
                                                                            2, the objections raised against the applicant were not
                                                                                sufficiently specified;
Action brought on 22 February 1995 by Asland SA against
        the Commission of the European Communities                          3 , the Decision contains new objections which are
                          Case T-55/95 )                                        different to those raised against the applicant in the
                                                                                Statement of Objections .
                           ( 95/C 119/41 )
                                                                       III. Insufficient statement of reasons. The applicant states
                (Language of the case: Spanish)                             that the Commission has failed to set out clearly and
                                                                            coherently the considerations of fact and law on which
An action against the Commission of the European                            it has based its Decision, so that neither the applicant
Communities was brought before the Court of First                           nor the Court of First Instance is in a position to be
Instance of the European Communities on 22 February                         cognizant of the elements of its reasoning.
1995 by Asland SA, whose registered office is Barcelona
( Spain), represented by Antonio Creus Carreras, of the                IV. Misapplication of Article 85 ( 1 ) to the applicant's
Barcelona Bar, Antonio Hierro Hernandez Mora , of the                       conduct.
Madrid Bar, and Xavier Ruiz Calzado, of the Barcelona Bar,
with an address for service in Brussels at 78 Avenue
                                                                            1 . First, the applicant considers that, in so far as it is
d'Auderghem.                                                                    concerned, the Commission has not determined
                                                                                the facts correctly, since it is alleged to have
The applicant claims that the Court should:                                     participated in the ' Cembureau Agreement' solely
                                                                                on the basis of its proven attendance at a meeting
— annul in whole or in part Commission Decision ( 94 )
     3077 final of 30 November 1994,                                            prior to that setting up the 'European Task Force '
                                                                                and on the unfounded assumption that it also
— in the alternative, in the event that the Decision is upheld                  participated in the subsequent meeting of that
     in whole or in part, cancel the fine imposed on Asland SA                  group .
     in Article 9,
                                                                            2 . Secondly, the applicant states that, in so far as it is
— in the further alternative, in the event that the Decision is                 concerned, all the legal assessments of the
     upheld in whole or in part, substantially reduce the fine                  Commission of the unproven facts are unfounded,
     imposed on Asland SA in Article 9,                                         since it has not been proven that, by attending the
                                                                                meeting in Rome in May 1986 the applicant had
— order the Commission to pay to Asland SA the whole of                         infringed Article 85 ( 1 ) of the EC Treaty.
     the costs of the proceedings, including the costs (with
     interest) of the security lodged for payment of the whole          V. In the alternative, in so far as concerns the fine, the
     or part of the fine .                                                  applicant pleads:
Pleas in law and main arguments adduced in support:                         1 , inadequacy of the reasons given for the fine;
The applicant relies on the following grounds in support of
its application:                                                            2 , misapplication of Article 15 (2 ) of Regulation
                                                                                No 17/62 to the conduct of the applicant;
  I. Infringement of Article 6 of the European Convention
       for the Protection of Human Rights and Fundamental                   3 , breach of the principle of equal treatment;
 ---pagebreak--- 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.