CELEX: C2003/275/51
Language: en
Date: 2003-11-15 00:00:00
Title: Case C-398/03: Reference for a preliminary ruling by the Helsingin Hallinto-oikeus by order of that Court of 22 September 2003 in the case brought by E. Gavrielides Oy

C 275/34                EN                         Official Journal of the European Union                                          15.11.2003
(v) in any event, order that the Commission bear its own                   (5) the CFI distorts the evidence by finding that the Com-
      costs and pay ADM’s costs relating to the proceedings                      mission has proven actual economic impact as the
      before the CFI and the ECJ.                                                evidence in question does not analyse price levels absent
                                                                                 collusion and therefore cannot show that prices were
                                                                                 higher than they otherwise would have been;
                                                                           (6) the CFI infringes the principle that the Commission must
                                                                                 follow self-imposed rules by permitting the Commission
                                                                                 to infringe the Guidelines;
Pleas in law and main arguments
                                                                           (7) the CFI infringes the principle of proportionality, as
                                                                                 interpreted by the ECJ and CFI, which requires that fines
The grounds relied upon by the Appellants are as follows:                        bear some relationship to relevant turnover.
(1) the CFI infringes the principle of non-retroactivity by                (1) OJ C 316, 4.11.2002, p. 32.
      upholding the Commission’s retroactive application of                (2) 2001/418/EC: Commission Decision of 7 June 2000 relating to a
      the Guidelines on Fines;                                                 proceeding pursuant to Article 81 of the EC Treaty and Article 53
                                                                               of the EEA Agreement (Case COMP/36.545/F3 Amino Acids)
                                                                               (Text with EEA relevance) (OJ L 152, 7.6.2001, p. 24).
(2) the CFI infringes the principle of equality:
      (a)   by upholding the Commission’s discrimination as
            to the method of calculation of fines applied to
            contemporaneous competition law infringements
            depending on whether the Commission adopts its
            decision before or after publication of the Guide-
            lines;
                                                                           Reference for a preliminary ruling by the Helsingin
      (b)   by upholding an equal starting point for the fine on           Hallinto-oikeus by order of that Court of 22 September
            ADM and Ajinomoto, notwithstanding Ajinomoto’s                        2003 in the case brought by E. Gavrielides Oy
            market share in the EEA is almost twice the size of
            ADM’s;
                                                                                                    (Case C-398/03)
(3) the CFI infringes the principle of ne bis in idem by holding
      that the Commission is not required to set off or take
                                                                                                    (2003/C 275/51)
      into account fines paid by ADM to other authorities in
      respect of the same actions;
(4) the CFI infringes the duty to state reasons:
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Helsingin Hallinto-
                                                                           oikeus (Helsinki Administrative Court) of 22 September 2003,
      (a)   in finding that the Commission is not required to              received at the Court Registry on 24 September 2003, for a
            take account of fines paid by ADM in third countries           preliminary ruling in the case brought by E. Gavrielides Oy on
            notwithstanding that the Commission’s fine is based,           the following questions:
            inter alia, on ADM’s global turnover and therefore
            penalises ADM on the basis of its sales in countries
            where ADM has already been fined;
                                                                           Is Article 1(1) of Council Directive 90/642/EEC of 27 Novem-
                                                                           ber 1990 (1) on the fixing of maximum levels for pesticide
      (b)   in finding that the fine is reasonable notwithstanding         residues in and on certain products of plant origin, including
            the Commission’s failure to take into account ADM’s            fruit and vegetables, as subsequently amended, to be interpret-
            EEA lysine sales;                                              ed as meaning that the directive applies to leaves of the vine?
 ---pagebreak--- 15.11.2003             EN                         Official Journal of the European Union                                           C 275/35
If the directive applies,                                                       measures. Thus it is for the Commission, as a general
                                                                                rule, to monitor State aid. Certainly, the Council has a
                                                                                decision-making power in the matter but it is an excep-
is Annex I to the directive to be interpreted as meaning that                   tional power which must be strictly interpreted.
leaves of the vine are classified in the product group Leaf
vegetables and fresh herbs and Annex II as meaning that leaves
of the vine are classified under the point Herbs, Others?
                                                                          —     Misuse of powers and procedure: The power conferred
                                                                                on the Council exceptionally to authorise State aid instead
In which product group and point are leaves of the vine to be                   of the Commission and, where proceedings are initiated,
classified if they are not to be classified under the point Herbs,              subject to closely defined time-limits, was used in order
Others?                                                                         to neutralise the Commission’s Decision of 17 February
                                                                                2003, that is to say to annul its effects, by authorising aid
                                                                                identical to the aid declared incompatible. The contested
(1) OJ L 350 of 14.12.1990, p. 71.
                                                                                decision is also vitiated by a misuse of powers because it
                                                                                was adopted in order to produce the same effects as an
                                                                                annulment judgment by the Court of Justice.
                                                                          —     Infringement of the Treaty and of the general principles
Action brought on 25 September 2003 by the Com-                                 of Community law. The contested decision not only
mission of the European Communities against the Council                         was adopted in breach of the third subparagraph of
                     of the European Union                                      Article 88(2) EC but also disturbs the institutional
                                                                                equilibrium established by the Treaty as between the
                                                                                Commission and the Council. That equilibrium entails
                          (Case C-399/03)                                       observance by the other institutions, in particular the
                                                                                Council, of the Commission’s sphere of competence. That
                         (2003/C 275/52)                                        means that, except in the case of an express derogatory
                                                                                power, the Council may not impinge on the Com-
                                                                                mission’s sphere of competence. However, in the present
                                                                                case, the Council acted ultra vires. The procedure at issue
An action against the Council of the European Union was                         also disturbs the equilibrium between the ‘executive’
brought before the Court of Justice of the European Communi-                    institutions and the Community judicature and, in general
ties on 25 September 2003 by the Commission of the                              terms, jeopardises the adjudication system established by
European Communities, represented by G. Rozet and V. di                         the Treaty. Finally, the Council Decision infringes the
Bucci, acting as Agents, with an address for service in                         substantive law in the matter of State aid and Council
Luxembourg.                                                                     Directive 69/335/EEC, as well as the obligation in that
                                                                                regard to provide a statement of reasons.
The Commission of the European Communities claims that
the Court should:
                                                                          —     In the alternative, manifest error of assessment and
1)    annul Council Decision 2003/531/EC of 16 July 2003 (1),                   misuse of powers as to the existence of exceptional
                                                                                circumstances. The Council manifestly erred in its assess-
2)    order the defendant to pay the costs.                                     ment in particular by deeming exceptional circumstances
                                                                                to exist owing to the fact that Belgium did not have the
                                                                                time necessary to put in place measures different from
                                                                                those declared incompatible with the common market by
Pleas in law and main arguments                                                 the Commission Decision of 17 February 2003 in favour
                                                                                of coordination centres established in its territory.
The Council Decision of 16 July 2003 authorised the granting
of aid identical to aid declared incompatible by the Com-
mission’s final negative decision of 17 February 2003. An
individual Council Decision on State aid is in principle                  (1) Council Decision 2003/531/EC of 16 July 2003 on the granting
extraneous to the monitoring system established by the Treaty                 of aid by the Belgian Government to certain coordination centres
and must be confined to exceptional situations.                               in Belgium (OJ 2003 L 184, p. 17).
The Council Decision is vitiated in several regards:
—     Lack of competence of the Council: Only a body indepen-
      dent of the States providing aid is in a position to
      examine objectively and impartially the different national