CELEX: C1995/208/61
Language: en
Date: 1995-08-12 00:00:00
Title: Action brought on 25 April 1995 by Benjamin Laurence Lay against the Council of the European Union and the Commission of the European Communities (Case T-107/95)

No C 208/28           EN                  Official Journal of the European Communities                                      12 . 8 . 95
The applicants claims that the Court should :                        but on the contrary caused it immediate and severe damage,
                                                                     which is demonstrated moreover by the fact that at the
— adjudicate on this application separately from any other           material time when those activities were being undertaken
    associated application against the same Commission               an appreciable fall in the volume of its exports was recorded .
    Decision,                                                        For those reasons the applicant not only did not adhere to
                                                                     the principle of respect for domestic markets but actively
— annul        Commission       Decision       94/815/EC      of
                                                                     worked against it.
    30 November 1994 relating to a proceeding under
    Article 85 of the EC Treaty ( IV-33.126 and 33.322 —
    Cement ) to the extent to which it concerns the                  As regards exchanges of information unlawful under
                                                                     Community law alleged against it, the applicant maintains
    applicant,
                                                                     that the information exchanged as referred to in the
— in the alternative, reduce the fine imposed on the                 Commission's statement of objections was purely of
    applicant under the abovementioned decision,                     statistical interest and was very general in nature; the
                                                                     consideration of that information, rather than information
— order the Commission to pay the applicant's costs                  from other official sources, within Cembureau and other
    including the fees of his appointed lawyers .                    analogous bodies was merely adjudged to be most
                                                                     convenient and economic .
Pleas in law and main arguments adduced in support:
                                                                     Moreover, the applicant refutes any involvement by it in
In the contested Decision the Commission found that the              concerted practices with a view to sharing markets and
applicant company, Tsimenta Xalkidos AE, in common                   corresponding channelling of exports, and emphasizes that
with other undertakings producing cement, had infringed              it cannot be held liable for activities of other companies
the provisions of Article 85 ( 1 ) of the EC Treaty. That            solely because it participated in the EPC and the ECEC .
infringement consisted in its participation in ( a ) an
agreement whose purpose was to respect domestic markets              On those grounds the applicant considers that the contested
and to regulate transfers of cement from one country to              decision must be annulled on the basis of the infringement of
another, ( b ) in a persistent concerted practice within the         essential formal requirements and the absence of a specific
framework of the European Policy Committee ( EPC ) with              and adequate statement of reasons . Moreover, it maintains
regard to the analysis of the situation both on the                  that the Commission misused its powers given that it used
Community markets and on the markets of non-member                   the powers available to it for the imposition of penalties
countries and the exchange of specific information                   against undertakings operating a cartel in order to include
concerning quantities available for export and actual                within their number an undertaking which it acknowledges
exports to non-member countries with a view to preventing            did not participate in the alleged cartel .
market penetration of competitor undertakings in the
Community in other internal markets of the Community. In             As regards the fine imposed on it, the applicant considers
respect of those infringements the Commission imposed on             that penalty to be completely unjustified given that it is
the applicant a fine in the amount of ECU 1 856 000 .                 based neither on acknowledged and proven factual
The applicant maintains at the outset that, in its statement of      circumstances nor on legal considerations adduced by the
objections the Commission neither refers to nor adduces any           Commission in its Decision . Finally, according to the
concrete action by Tsimenta Xalkidos AE constituting an               applicant, the Commission has infringed the principles of
infringement of the competition rules but instead by                  proportionality and equal treatment inasmuch as the
implication imputes to it the allegations made against the            amount of the fine is disproportionate to the seriousness of
other undertakings involved .                                         the infringements alleged against it and which put it on an
                                                                      equal footing with other Greek companies which are alleged
In support of its assertion, the applicant points out that in         to have committed             certain    particularly    serious
the draft of the contested Decision it was not included               infringements .
amongst the companies on whom it was appropriate to
impose fines and that it was included at the last minute
 notwithstanding the fact that in its view no infringement
was constituted on the basis of the factual circumstances or
the legal assessment.
 With particular regard to its imputed participation in the           Action brought on 25 April 1995 by Benjamin Laurence Lay
 Cembureau agreement, concerning respect for domestic                 against the Council of the European Union and the
 markets, the applicant considers the Commission's                            Commission of the European Communities
 reasoning to be illogical when it attributes responsibility to it
                                                                                             ( Case T-107/95 )
 for actions and agreements in respect of which it makes a
 blanket charge against 'Greek producers' or 'European                                         ( 95/C 208/61 )
 cement-manufacturers ', without mentioning any actual
 involvement by Tsimenta Xalkidos AE in those actions and                            (Language of the case: English)
 agreements . The applicant stresses that the activities of
 Cembureau attributed to it , and those of the other bodies
 ( European Task Force, European Cement Export                         An action against the Council of the European Union and
 Committee and others ) not only did not serve its interests,          the Commission of the European Communities was brought
 ---pagebreak--- 12 . 8 . 95           EN                  Official Journal of the European Communities                                No C 208/29
before the Court of First Instance of the European                   before the Court of First Instance of the European
Communities on 25 April 1995 by Benjamin Laurence Lay,               Communities on 25 April 1 995 by Donald George Gage and
represented by Richard Gordon QC and Joanne Keddie,                  David John Gage, represented by Richard Gordon QC and
Solicitor, Dawson & Co, 2 New Square, Lincoln's Inn,                 Joanne Keddie, Solicitor, Dawson & Co, 2 New Square,
London WC2A 3RZ, England .                                           Lincoln's Inn, London WC2A 3RZ, England .
The applicant claims that the Court should :                         The applicants claim that the Court should :
— declare that the decision of the Council and/or the
                                                                     — declare that the decision of the Council and/or the
     Commission of 13 February 1995 declining
     non-contractual liability in respect of the application by          Commission of 13 February 1995 declining
     the applicant for measures providing compensation for               non-contractual liability in respect of the application by
     himself, and the group of SLOM 3 producers, is null                 the applicants for measures providing compensation for
     and/or void and of no effect and/or annul the said                  them, and the group of SLOM 3 producers, is null and/or
     decision;                                                           void and of no effect and/or annul the said decision;
— declare that the Council and/or the Commission have                — declare that the Council and/or the Commission have
     failed to implement a Regulation or take such other                 failed to implement a Regulation or take such other
     measures to introduce compensation for the applicant                measures to introduce compensation for the applicants
     and the group of SLOM 3 producers;                                  and the group of SLOM 3 producers;
— order that the costs of these proceedings be borne by the          — order that the costs of these proceedings be borne by the
     defendants .                                                        defendants .
Pleas in law and main arguments adduced in support:
                                                                     Pleas in law and main arguments adduced in support:
The applicant, a SLOM 3 dairy producer, complains that no
arrangements have been made by the Community                         The pleas in law and main arguments are the same as those
institutions to make available for this category of milk             raised in Case T-107/95 .
producers compensation measures similar to those
introduced for SLOM 1 and 2 producers pursuant to
Council Regulation ( EEC ) No 2187/93 .
According to Regulation ( EEC ) No 2187/93 , producers
who were allocated a special reference quantity under
Article 3a, pursuant to Regulation ( EEC ) No 2055/93 , are
excluded from claiming compensation in relation to their             Action brought on 8 May 1995 by Peter Dethlefs and 38
allocation of SLOM 3 quota .                                         other applicants against the Council of the European Union
                                                                         and the Commission of the European Communities
The applicant submits that this exclusion of the group of                                   ( Case T-l 12/95 )
SLOM 3 producers represents a serious violation of a                                           95/C 208/63 )
legitimate expectation of compensation for the period from
the end of his non-marketing scheme to the date on which he
received an allocation of SLOM 3 quota . Such a failure to                          (Language of the case: German)
provide for compensation is contrary to the principles of
Community law of respect for property and of
non-discrimination between equivalent producers.                     An action against the Council of the European Union and
                                                                     the Commission of the European Communities was brought
                                                                     before the Court of First Instance of the European
                                                                     Communities on 8 May 1995 by Peter Dethlefs and 38 other
                                                                     applicants , of Groven, Federal Republic of Germany . The
                                                                     applicants are represented by Bernd Meisterernst, Mechtild
                                                                     Düsing, Dietrich Manstetten, Dr Frank Schultze and Dr
Action brought on 25 April 1995 by Donald George Gage                Winfried Flaneklaus , of Münster ( Federal Republic of
and David John Gage against the Council of the European              Germany), whose address for service in Luxembourg is at
Union and the Commission of the European                             the Chambers of Dupong & Associates, 14a Rue des
                          Communities                                Bains .
                       ( Case T-108/95 )
                         ( 95/C 208/62
                                                                     The applicants claim that the Court should :
                (Language of the case: English)                      — order the defendants jointly and severally to pay to the
                                                                          applicants in respect of the period between the expiry of
An action against the Council of the European Union and                   the two-month period for acceptance contained in
the Commission of the European Communities was brought                    Article 14 of Council Regulation ( EEC ) No 2187/93 of