CELEX: C1996/064/30
Language: en
Date: 1996-03-02 00:00:00
Title: Action brought on 23 November 1995 by Asociación de Fabricantes de Cemento de España (Oficemen) against the Commission of the European Communities (Case T-212/95)

2 . 3 . 96          1 EN |                 Official Journal of the European Communities                                   No C 64/ 13
2 . the application for interim measures is dismissed;                Instance of the European Communities on 23 November
                                                                      1995 by Fabricantes de Cemento de Espana ( Oficemen ),
3.   costs are reserved.                                              whose registered office is in Madrid, represented by Jaime
                                                                      Folguera Crespo and Edurne Navarro Varona, of the
                                                                      Barcelona Bar, with an address for service in Luxembourg at
                                                                      the Chambers of Luc Frieden, 62 Avenue Guillaume .
               ORDER OF THE PRESIDENT
          OF THE COURT OF FIRST INSTANCE
                                                                      The applicant claims that the Court should :
                     of 21 December 1995
                                                                      — annul, pursuant to Articles 173 and 174 of the EC
in Case T-220/95 R: Christophe Gimenez v. Committee of
             the Regions of the European Union
                                                                          Treaty, the decision of the Commission of February
                                                                           1994 whereby it gives definite effect to its proposal to
                            96/C 64/29 )                                  refuse to adopt protective measures against imports of
                                                                          cement from Turkey, Romania and Tunisia ,
                (Language of the case: French)
In Case T-220/95 R: Christophe Gimenez, a member of the               — declare, pursuant to Article 175 of the EC Treaty, that,
temporary staff of the Economic and Social Committee of                    by not adopting within a reasonable period a decision
the European Communities, residing in Brussels,                            bringing to a conclusion anti-dumping proceedings, the
represented by Eric Boigelot, of the Brussels Bar, with an                 Commission has infringed Article 7 ( 9 ) ( a ) of the basic
address for service in Luxembourg at the Chambers of Louis                Regulation, and
Schiltz, 2 Rue du Fort Rheinsheim, supported by Union
Syndicale-Bruxelles, established in Brussels, represented by          — order the Commission to pay the costs incurred by
Veronique Lebrun, of the Brussels Bar, with an address for                 Oficemen in these proceedings.
service in Luxembourg at the Chambers of Louis Schiltz, 2
Rue du Fort Rheinsheim, and Economic and Social
Committee of the European Communities ( Agent: Moises                 Pleas in law and main arguments adduced in support:
Bermejo Garde ), v. Committee of the Regions of the
European Union, represented by Dominique Lagasse, of the
Brussels Bar, with an address for service in Luxembourg at            The applicant, an association whose object is, inter alia, to
the office of Carlos Gomez de la Cruz, of the Legal Service of        defend and promote the interests of the Spanish cement
the Commission of the European Communities, Wagner                    sector, challenges the decision of the defendant institution
Centre, Kirchberg — application for suspension of the                 not to proceed with the anti-dumping proceedings against
procedure in competition CdR A/03/95 , organized by the               imports into Spain of cement from Turkey, Tunisia and
Committee of the Regions, alternatively of the appointment            Romania , which was initiated by the complaint lodged by it
procedures anticipated in consequence of that competition             with the Commission . The contested decision is based on the
— the President of the Court of First Instance made an order          finding that the protective measures sought were
on 21 December 1995 , the operative part of which is as               unnecessary since production and volume of sales remained
follows :                                                             stable, market share and the profitability of the sector
                                                                      remained significant and since costs had risen as a result of
 1 . the Union Syndicale-Bruxelles and the Economic and               excessive overcapacity .
      Social Committee are granted leave to intervene in
      support of the form of order sought by the applicant;           The applicant claims, first, that Article 4 of Regulation
                                                                      ( EEC ) No 2423/88 was infringed as a result of the manifest
2 . the application for interim measures is dismissed;                error of assessment and the breach of the principle that due
                                                                      care must be exercised and of the principle of good
 3 . the costs are reserved.                                          administration on which the decision to               shelve   the
                                                                      proceeding is based. The applicant points out in this regard
                                                                      that, contrary to the contention of the Commission, Spanish
                                                                      producers have suffered a significant loss of their share of
                                                                      the market and have been forced to reduce their prices as a
                                                                      result of the dumped imports . Moreover, the fall in profits in
Action brought on 23 November 1995 by Asociacion de                   the sector cannot be attributed to any alleged overcapacity,
 Fabricantes de Cemento de Espana ( Oficemen ) against the             but to the fact that it is impossible to increase prices in order
          Commission of the European Communities                      to reflect the increase in production costs .
                        ( Case T-2 12/95 )
                           ( 96/C 64/30 )                              Secondly, the decision which forms the subject-matter of the
                                                                       dispute infringes Article 9 of the basic Regulation, referred
                (Language of the case: Spanish)                        to above, inasmuch as the Commission is not competent to
                                                                       conclude anti-dumping proceedings without adopting
 An action against the Commission of the European                      protective measures, contrary to the position adopted by the
 Communities was brought before th£ Court of First                     Council .
 ---pagebreak--- No C 64/14           f EN                  Official Journal of the European Communities                                     2 . 3 . 96
Finally, the applicant pleads infringement of Article 190 of          under Article 22 ( 3 ) of Regulation ( EEC ) No 4064/89
the Treaty on the ground that the statement of reasons is             directly define and restrict the scope of the Commission's
inadequate .                                                          competence to investigate a concentration.
The applicant also relies on Article 175 of the Treaty against        As the Commission was, in the present case, requested by
the conduct of the Commission. The applicant explains in              the Netherlands Government to examine the concentration
this regard that the Commission has not defined its position          only in light of the TV advertising market, the Commission
as requested by the applicant, has not adopted any decision           could not expand the scope of the inquiry which it was
entailing the formal conclusion of the anti-dumping                   requested to carry out, so as to cover other markets .
proceeding and it has not taken within a reasonable period
any of the steps required by the basic Regulation in the event        Secondly, the Decision must be annulled because the
that a proposal to conclude anti-dumping proceedings                  Commission has infringed the applicants' rights of defence .
without imposing measures is rejected by the Council .                The Commission has seriously failed in its obligation to
                                                                      grant the applicants access to the file and to documents
                                                                      relevant for the conduct of their defence . This infringement
                                                                      of the rights of defence concerns not only the way in which
                                                                      the Commission granted 'access to the file ' but also the
                                                                      Commission 's refusal of access to essential documents
                                                                      obtained by the Commission after the date of the 'access to
Action brought on 4 December 1995 by Endemol                          the file '. There are serious indications that the Commission
Entertainment Holding BV, Veronica Omroep Organisatie,                thus withheld from the applicants documents which
Compagnie Luxembourgeoise de Télédiffusion SA, NV                     supported their view and arguments .
Verenigd Bezit VNU and RTL4 SA against the Commission
                 of the European Communities                          Thirdly, the Decision must be annulled because the
                        ( Case T-221 /95 )                            Commission has infringed essential procedural rules and the
                           ( 96/C 64/31 )                             applicants' rights of defence by not submitting a report of
                                                                      the hearing to the Advisory Committee, the Commissioners
                                                                      and the applicants themselves .
                {Language of the case: English)
                                                                      Fourthly, the Decision must be annulled because the
An action against the Commission of the European                      Commission was wrong in concluding that Endemol 's
Communities was brought before the Court of First                     participation in HMG would strengthen an alleged
Instance of the European Communities on 4 December                    dominant position of Endemol in an alleged market of
1995 by Endemol Entertainment Holding BV, and Veronic                 independent Dutch TV production.
Omroep Organisatie, represented by Onno W. Brouwer and
Peter Wytinck, Stibbe Simont Monahan Duhot, and by                    Fifthly, HMG does not have a dominant position on the TV
Compagnie Luxembourgoise de Télédiffusion SA, NV                      broadcasting and TV advertising market . The applicants
Verenigd Bezit VNU and RLT4 SA, represented by Mark                   are, in particular, unable to agree with the Commission's
B. W. Biesheuvel and T. Martijn Snoep, De Brauw                       analysis of the position of the public broadcasters in the
Blackstone Westbroek, all with an address for service in              Netherlands . The Commission has limited itself to taking
Luxembourg at the Chambers of M. Loesch, Rue Goethe                   over and accepting on face value arguments and facts which
11 .                                                                  the Dutch public broadcasters have presented to the
                                                                      Commission, in their capacity as complainants ( SBS, a direct
                                                                      competitor of HMG, and the Dutch public broadcasters
The applicant claims that the Court should :                          have done their utmost to oppose and frustrate the creation
                                                                      of HMG).
— annul the Commission's Decision of 20 September 1995
     relating to a proceeding pursuant to Council Regulation
     ( EEC )    No 4064/89          ( IV/M.553-RTL/Veronica/-         Sixthly, the Decision must be annulled because the
     Endemol), and                                                    Commission has incorrectly held that Endemol has a
                                                                      dominant position. The Commission has defined the
                                                                      production market incorrectly . Furthermore, even in this
— order the Commission to pay the applicants' costs                   narrowly defined market, Endemol does not have a
     pursuant to Article 87 of the Rules of Procedure of the          dominant position . The Commission has incorrectly
     Court of First Instance .                                        calculated Endemol's market share and relied on other
                                                                      incorrect facts in assessing Endemol's position .
Pleas in law and main arguments adduced in support:
                                                                      Seventhly, the concentration will in any event not lead to a
Firstly, the applicants claim that the Decision must be               significant change in effective competition on the
annulled on grounds of lack of competence, misuse of power            production market.
and infringement of Article 22 ( 3 ) of Regulation 4064/89
and Article 3b of the EC Treaty. The applicants submit that
the text and the content of a request from a Member State