CELEX: C2002/097/27
Language: en
Date: 2002-04-20 00:00:00
Title: Case T-26/02: Action brought on 8 February 2002 by Daiichi Pharmaceutical Co. Ltd. against the Commission of the European Communities

20.4.2002              EN                    Official Journal of the European Communities                                        C 97/13
Pleas in law and main arguments                                         —    infringes Article 86(2) of the EC Treaty and general
                                                                             communications on services in the general interest and
                                                                             those specifically concerning aid to maritime transport
                                                                             by considering, in blatant contradiction to those pro-
The applicant, a Spanish maritime company which, although                    visions, that the aid is compatible with Article 86(2). The
the majority of its shares are held in the Netherlands, has for a            applicant would point out in that respect that:
long time been operating a number of sea routes between
the islands of the Canaries archipelago, is challenging the
Commission decision                                                          (a)   there is no act emanating from the public authorities
                                                                                   defining the content of services in the general
                                                                                   interest and recommending Transmediterránea to
                                                                                   provide them;
(a)   not to contest the payment to Transmediterránea S.A. of
      PTA 15 560 625 000 intended to make up for the losses
      arising from the provision of cabotage services during                 (b) it was not necessary to declare Canary routes as
      1997 and, secondly, to settle the rights and obligations                     being in the general interest; and
      of the State directly linked to the public service contract
      entered into in 1977 between Transmediterránea and the
      Spanish State and,                                                     (c)   the routes were not awarded by means of an open
                                                                                   tender procedure.
(b) not to raise any objection whatever to the aid valued at
      PTA 1 650 000 000 paid to Transmediterránea in the
      form of public service compensation for the maritime
      cabotage services provided by that company in the
      Canaries archipelago during 1998.
As regards the first aspect, that is to say the amounts paid to         Action brought on 8 February 2002 by Daiichi Pharma-
Transmediterránea in the form of settling accounts for 1997            ceutical Co. Ltd. against the Commission of the European
and final settlement of the contract which the Commission                                         Communities
accepts because it deems such payments existing aid — prior
to the accession of Spain — in that they arise directly from the
                                                                                                 (Case T-26/02)
implementation of the contract entered into in 1977, the
applicant claims that the contested decision is vitiated by an
error of assessment inasmuch as it allows:                                                       (2002/C 97/27)
—     certain expenditure relating to staff reduction to be                                (Language of the case: English)
      charged to the accounts for 1997 and for final settlement;
      and
                                                                        An action against the Commission of the European Communi-
—     payment of the entire amount by way of final settlement           ties was brought before the Court of First Instance of the
      without charging the debts to the financial years in which        European Communities on 8th February 2002 by Daiichi
      they may have arisen and without offsetting them with             Pharmaceutical Co. Ltd., represented by Mr Jacques Buhart and
      any surpluses.                                                    Mr Pierre-M. Louis of Coudert Brothers LLP, Brussels (Belgium).
As regards the second aspect, that is to say the aid granted in         The applicant claims that the Court should:
the form of compensation for the routes provided in the
Canaries during 1998, which the Commission classifies as new            —    annul Article 3 (f) of the Commission Decision of
aid, the applicant alleges that the contested decision:                      21 November 2001 relating to a proceeding pursuant to
                                                                             Article 81 of the EC Treaty and Article 53 of the EEA
                                                                             Agreement (Case No. COMP/E-1/37,512 — Vitamins);
—     infringes Article 88 of the EC Treaty, since the competent
      Spanish authority, by granting the aid, has failed to fulfil      —    alternatively, substantially decrease the fine levied on the
      its obligations under the recommendation, drawn up by                  applicant; and
      the Commission pursuant to the aforementioned article,
      on the upkeep and maintenance of the system of aid
      applicable to Transmediterránea.                                 —    order the Commission to pay the costs.
 ---pagebreak--- C 97/14                EN                      Official Journal of the European Communities                                        20.4.2002
Pleas in law and main arguments:                                          Action brought on 21 February 2002 by the Associazione
                                                                          Bancaria Italiana (ABI) against the Commission of the
                                                                                               European Communities
                                                                                                    (Case T-36/02)
The applicant is a Japanese pharmaceutical company whose
subsidiary company manufactured D-pantolactone and
D-Calcium Pantothenate (Vitamin B5) and Pyridoxine                                                  (2002/C 97/28)
(Vitamin B6) during the relevant period. In the contested
Decision, the Commission imposed fines upon the applicant                                     (Language of the case: Italian)
and seven other companies for participating in eight distinct
secret market-sharing and price-fixing cartels affecting vitamin
products.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 21 February 2002 by the Associa-
                                                                          zione Bancaria Italiana (ABI), represented by Alberto Santa
The applicant does not dispute the Commission’s finding that              Maria, Claudio Biscaretti di Ruffia, Giuseppe Pizzonia and
the applicant had infringed Article 81(1) of the EC Treaty                Marcello Valenti, lawyers.
and Article 53(1) of the EEA Agreement by participating in
agreements affecting the Community and EEA markets for
Vitamins B5 and B6. Furthermore, the applicant does not                   The applicant claims that the Court should:
contest the facts found by the Commission. The applicant
seeks, however, the annulment of Article 3(f) of the Decision             —     annul the contested decision, issued on 11 December
imposing a fine of EUR 23.4 million upon the applicant or,                      2001 by the Commission of the European Communities,
alternatively, a substantial reduction of that fine.                            on the grounds that it infringes essential procedural
                                                                                requirements and/or is unfounded, contradictory and/or
                                                                                lacking in a statement of reasons in accordance with
                                                                                Article 253 of the EC Treaty in conjunction with Arti-
                                                                                cles 87 and 77 and with Council Regulation
The applicant submits inter alia that the Commission commit-                    No 659/1999, as expounded in the application;
ted a manifest error of judgement, erroneously applied the law
to the facts and infringed the Fining Guidelines                          —     alternatively, annul the decision in question wholly or in
                                                                                part pursuant to the second paragraph of Article 230 of
                                                                                the EC Treaty, inasmuch as it infringes or misapplies
                                                                                Article 87(1) or, in the further alternative, Article 87(3)(b)
—     by failing to place the applicant in a third category,                    or (c) of the EC Treaty, as expounded in the application;
      behind both Hoffmann-La Roche and BASF, in setting
      the starting point for the amount of the fine relating to
      the gravity of the infringement, or, alternatively and in           —     in the still further alternative, in the inconceivable event
      violation of the principle of equal treatment, in failing to              that the Court finds that the articles of Law No 461 of
      place the applicant in the second category with BASF;                     23 December 1998 and of Legislative Decree No 153 of
                                                                                17 May 1999, to which the contested decision relates,
                                                                                constitute a system of State aid which is incompatible
                                                                                with the common market, rule that the contested decision
—     by failing to treat the applicant’s less-than-full implemen-              of the Commission cannot have any retroactive effect;
      tation of the Vitamin B5 cartel as an attenuating circum-
      stance warranting a substantial reduction of the basic              subject to the reservation of all rights.
      amount of the fine;
                                                                          Pleas in law and main arguments
—     by failing to grant to the applicant total immunity or a
      very substantial reduction of 75 % to 100 % of the fine
      for the Vitamin B5 infringement pursuant to Section B
                                                                          The present action is directed against the Commission’s
      of the Leniency Note on the basis of the applicant’s
                                                                          decision of 11 December 2001 concerning the system of State
      cooperation during the procedure or, alternatively, a
                                                                          aid implemented by Italy in favour of banks (C/54/A/2000/EC
      lesser reduction of the fine pursuant to Section C or
                                                                          [ex NN 70/2000]). That system of aid results from the
      Section D of the Leniency Notice.
                                                                          application of Law No 461 of 23 December 1998 (the ‘Legge
                                                                          Ciampi’) and of Legislative Decree No 153 of 17 May 1999,
                                                                          which lay down certain fiscal measures in relation to mergers
                                                                          between banking institutions and the transfer of capital goods
                                                                          and equipment, as part of the composite scheme for the
                                                                          privatisation of the sector.