CELEX: C1998/378/15
Language: en
Date: 1998-12-05 00:00:00
Title: Appeal brought on 7 October 1998 by Ca' Pasta Srl against the order made on 16 July 1998 by the Third Chamber of the Court of First Instance of the European Communities in Case T-274/97 between Ca' Pasta Srl and Commission of the European Communities (Case C-359/98 P)

C 378/8               EN                 Official Journal of the European Communities                                     5.12.98
1. In the light of the Judgment and Orders of the High              Appeal brought on 7 October 1998 by Ca' Pasta Srl
     Court of Ireland dated 28th May 1992 the decision of           against the order made on 16 July 1998 by the Third
     the Commission of the European Communities dated               Chamber of the Court of First Instance of the European
     11th March 1998 (1) and the applications by Van Den            Communities in Case T-274/97 between Ca' Pasta Srl and
     Bergh Foods Limited pursuant to Articles 173, 185                       Commission of the European Communities
     and 186 of the Treaty establishing the European
                                                                                          (Case C-359/98 P)
     Economic Community (EC Treaty') to annul and
     suspend the latter decision:                                                           (98/C 378/15)
     (a) Does the obligation of sincere cooperation with
         the Commission as expounded by the Court of                An appeal against the order made on 16 July 1998 by the
         Justice require the Supreme Court to stay the              Third Chamber of the Court of First Instance of the
         instant proceedings pending the disposal of the            European Communities in Case T-274/97 between Ca'
         appeal to the Court of First Instance against the          Pasta Srl and Commission of the European Communities
         aforesaid decision of the Commission and any               was brought before the Court of Justice of the European
         subsequent appeal to the Court of Justice?                 Communities on 7 October 1998 by Ca' Pasta Srl, whose
                                                                    registered office is in Padua (Italy), represented by Paolo
                                                                    Piva, of the Venice Bar, and Guy Arendt, of the
     (b) Does a decision of the Commission which is                 Luxembourg Bar, with an address for service in
         addressed to an individual party (and which is the         Luxembourg at the latter's Chambers, 7 Val Ste Croix.
         subject of an application for annulment and
         suspension by that party) declaring such party's
         freezer cabinet agreement to be contrary to                The appellant claims that the Court of Justice should: set
         Article 85(1) and/or Article 86 of the EC Treaty           aside as unlawful the order of the Court of First Instance,
         thereby prevent such party from seeking to uphold          Third Chamber, of 16 July 1998 and in consequence annul
         a contrary Judgment of the national Court in that          the measure complained of in the application at first
         party's favour on the same or similar issues under         instance.
         Articles 85 and 86 of the Treaty where that
         decision of the national court is appealed to the
         national Court of final appeal?
                                                                    Pleas in law and main arguments adduced in support:
Questions 2 and 3 only arise in the event of a negative
                                                                    1. Breach of general principles relating to proceedings
answer to question 1(a)
                                                                        brought against decisions under Article 173 of the EC
                                                                        Treaty. Failure to observe the rule of law. Infringement
                                                                        of Council Regulation (EEC) No 4028/86 (1) and
2. Having regard to the legal and economic context of                   Commission Regulation (EEC) No 1116/88 (2) of
     the cabinet agreements at issue in the market for                  20 April 1988 (laying down detailed rules for the
     single-wrapped items of impulse ice cream does the                 application of decisions granting aid for projects
     practice whereby a manufacturer and/or supplier of ice             concerning Community measures to improve and
     cream provides a freezer to a retailer at no direct                adapt structures in the fisheries and aquaculture sector
     charge Ð or otherwise induces the retailer to accept               and in structural works in coastal waters) and of
     the freezer Ð subject to the condition that the retailer           Council Regulation (EEC) No 4253/88 (3) of
     stock no ice cream in such freezer other than that                 19 December 1988 laying down provisions for
     supplied by the said manufacturer and/or supplier                  implementing Regulation (EEC) No 2052/88 as
     constitute an infringement of the provisions of                    regards coordination of the activities of the Different
     Article 85(1) and/or Article 86 of the EC Treaty?                  Structural Funds between themselves and with the
                                                                        operations of the European Investment Bank and the
                                                                        other existing financial instruments.
3. Are freezer exclusivity agreements protected from
     challenge under Articles 85 and 86 of the EC Treaty
     by reason of the provisions of Article 222 of the EC           2. Breach of the obligation to state reasons which is laid
     Treaty?                                                            down in Article 33 of the EC Statute of the Court of
                                                                        Justice and is also referred to in Article 46 of that
                                                                        Statute. The order is illogical and contradictory.
(1) Commission Decision of 11 March 1998, relating to a                 Breach of the rights of the defence.
    proceeding under Articles 85 and 86 of the EC Treaty (Case
    Nos IV/34.073, IV/34.395 and IV/35.436 Van den Bergh
    Foods Limited) (notified under document number C(1998)          (1) OJ L 376, 31.12.1986, p. 7.
    292) (Only the English text is authentic) (98/531/EC) (OJ       (2) OJ L 112, 30.4.1988, p. 1.
    L 246, 4.9.1998, p. 1).                                         (3) OJ L 374, 31.12.1988, p. 1.