CELEX: C1995/208/25
Language: en
Date: 1995-08-12 00:00:00
Title: Appeal lodged on 14 June 1995 by Baustahlgewebe GmbH against the judgment of the Court of First Instance (First Chamber) of 6 April 1995 in Case T-145/89, Baustahlgewebe GmbH v. Commission (Case C-185/95 P)

12 . 8 . 95            EN                 Official Journal of the European Communities                                No C 208/ 13
in the case of Affish BV and Rijksdienst voor de Keuring van         Pleas in law and main arguments adduced in support:
Vee en Vlees on the following question :
                                                                     — Excessive duration of proceedings : owing to the
Is Commission Decision 95/119/EC of 7 April 1995 valid in               duration proceedings of five years and six months the
so far as it extends to Surimi fishery products, also referred           Court of First Instance infringed the applicant's right to
to as kamaboko , as imported by the applicant, which come               a remedy within a reasonable time .
from regions of Japan other than those in which the
establishments investigated by a mission of experts from the         — Breach of the principle of oral proceedings; the Court of
Commission were located according to their report of                    First Instance did not deliver its judgment until 22
4 April 1995 , or at least from establishments other than               months after closure of the oral procedure, that is to say
those investigated , and in relation to products which,                 at a time when the oral procedure could no longer be and
following appropriate investigation upon their importation              was no longer in its mind .
into the Community, showed no sign of health risks ?
                                                                     — Infringement of recognized rules of evidence : in
                                                                        establishing the facts the Court fundamentally infringed
                                                                        recognized rules of evidence in relation to various sets of
                                                                        facts . Thus, from the beginning it employed an incorrect
                                                                        yardstick for evaluating the evidence in as much as it left
                                                                        out of account the applicant's submissions and
Appeal lodged on 14 June 1995 by Baustahlgewebe GmbH                    examined only whether the Commission had succeeded
against the judgment of the Court of First Instance ( First              'to the requisite legal standard ' in adducing evidence of
Chamber) of 6 April 1995 in Case T-145/89,
                                                                        specific factual assertions . This also constitutes an
             Baustahlgewebe GmbH v. Commission                          infringement of the judicial duty of elucidation and of
                       ( Case C-185/95 P)                               the right to a fair trial . By declining to investigate the
                          ( 95/C 208/25 )                               evidence offered by the applicant the Court of First
                                                                        Instance infringed its duty to conduct an unfettered
                                                                        appraisal of the evidence, the principle of in dubio pro
An appeal against the judgment delivered on 6 April 1995 by             reo and finally the applicant's right to a fair hearing.
the First Chamber of the Court of First Instance in Case
T-145/89         between Baustahlgewebe          GmbH and
                                                                     — Misapplication of provisions limited as to time
Commission was brought before the Court of Justice of the               contained in the Rules of Procedure : to accept witness
European Communities on 6 April 1995 by Baustahlgewebe                  evidence as offered in the reply would manifestly not
GmbH, established in Gelsenkirchen, represented by
                                                                        have led to a delay in the proceedings . The reply together
Joachm Sedemund and Dr Frank Montag, of Deringer                        with the offer of witness evidence was dated 30 April
Tessin Herrmann & Sedemund , Cologne and Brussels, with                  1990, whilst the oral hearing took place more than three
an address for service in Luxembourg at the Chambers of                 years later, namely on June 1993 .
Aloyse May, 31 Grand'rue, L-1661 Luxembourg.
                                                                     — Infringement of the right to a fair hearing. The Court of
The appellant claims that the Court should :                            First Instance erred in dismissing the request made by the
                                                                        applicant in its application that the Commission be
1 . Set aside the judgment of the Court of First Instance of            ordered to produce certain documents to it for
     the European Communities ( First Chamber ) of 6 April              inspection . In the administrative procedure before the
     1995 in Case T-145/89 (') in as much as it sets the                Commission the applicant was not legally represented
     amount of the fine imposed on the applicant at ECU 3               and had not inspected the documents in the file; this was
     million ( paragraph 2 of the operative part ), dismisses the       essentially attributable to the fact that the statement of
     remaining claims ( paragraph 3 of the operative part) and          objections held the ' German group ' and the
     orders the applicant to bear its own costs and one-third           Fachverband       Betonstahlmatten,      rather  than     the
     of the Commission 's costs ( paragraph 4 of the operative          applicant, responsible for alleged infringements of
     part );                                                            competition law. At no time did the applicant have
                                                                        available to it the totality of the documents against it and
2 . Annul Articles 1 , 2 and 3 of Commission Decision                   in its favour . On no account may the Court of First
     89/515/EEC ( 2 ) of 2 August 1989 relating to a                    Instance decline to order the production of those
     proceeding under Article 85 of the EC Treaty                        documents by relying on the argument that the applicant
     ( IV/31 . 553 — Welded Steel Mesh ) in so far as they affect       gave no indication that other documents would have
     the applicant and have not already been annulled by the             been relevant to its defence. A similarly serious
     aforementioned judgment of the Court of First Instance             infringement of the applicant's rights of the defence is
     in Case T-145 /89 ;                                                constituted by the dismissal of the request that the
                                                                         Commission be ordered to produce to the applicant for
3 . In the alternative, reduce to a reasonable amount the               inspection the documentation communicated to the
     fine of ECU 3 million imposed in paragraph 2 of the                 Commission by the Federal Cartel Office relating to the
     operative part of the aforementioned judgment of the               structural crisis cartel and the documents concerning the
     Court of First Instance in Case T-145/ 89 ;                        trilateral negotiations between the Commission, the
                                                                         Federal Cartel Office and the representatives of the
4 . Order the Commission to pay the costs at first instance              German undertakings involved in the structural crisis
     and on appeal .                                                    cartel . Irrespective of whether the structural crisis cartel
 ---pagebreak--- No C 208/ 14             EN                   Official Journal of the European Communities                                    12 . 8 . 95
      as such formed part of the decision to impose a fine, that         Reference for a preliminary ruling from the Landskrona
      cartel played a role in many places in the Commission's            Tingsratt by judgment of 14 June 1995 in the case of the
      decision and also had a decisive influence on the                               Public Prosecutor v. Harry Franzen
      judgment of the Court of First Instance .                                                 ( Case C-l 89/95 )
— Infringements of Article 85 ( 1 ) of the EC Treaty: the                                          ( 95/C 208/27 )
      Court of First Instance committed serious errors in its
      treatment of the established facts . In particular it several      Reference has been made to the Court of Justice of the
      times took no account of relevant considerations . That is
                                                                         European Communities by a judgment of the Landskrona
      true of market delimitation, the alleged arrangements              Tingsratt ( Landskrona District Court) of 14 June 1995 ,
      between the applicant and Trefilunion, the alleged quota           which was received at the Court Registry on 16 June 1995 ,
      and price agreements with the Benelux producers                    for a preliminary ruling in the case of Public Prosecutor v.
      concerning the German market and the alleged quota                 Harry Franzen on the following questions :
      and price agreements concerning the Benelux market.
      The judgment completely ignores the applicant's
      submissions at the hearing as well as the applicant's              1 . Is a statutory monopoly such as the Systembolaget
      replies to the written questions asked by the Court of                  compatible with Article 30 of the Treaty of Rome ?
      First Instance . Likewise the Court of First Instance failed
      to observe the preconditions of Regulation No 67/67                2 . Is a statutory monopoly such as the Systembolaget
      ( group exemptions ).                                                   contrary to Article 37 of the Treaty of Rome and, if so,
                                                                              must the monopoly be abolished or is an adjustment
— Infringements of Article 15 of Regulation No 17/62 : the                    possible ?
      Court of First Instance is wrong at law to assume that
      there is no need in an individual case to weigh up                 3 . If a monopoly such as the Systembolaget is to be
      mitigating and aggravating circumstances in the                         regarded as being contrary to Article 37, is any period of
      determination of the fine . Similarly wrong at law is the               adjustment available or should it have been abolished or
      Court 's assessment of the existence of the lawful                      an adjustment made by 1 January 1995 ?
      structural crisis cartel . The Court further fails to
       recognize that the applicant was in any event entitled to
      plead an inevitable mistake concerning the prohibition .
       Finally the Court misdirected itself in law in applying the
       principle of proportionality.
(') OJ No C 137, 3 . 6 . 1995 .
( 2 ) O ) No L 260 , 6 . 9 . 1989 , p . 1 .                              Reference for a preliminary ruling from the Gerechtshof,
                                                                         Amsterdam, by judgment of that court of 7 June 1995 in the
                                                                         case of ARO Lease BV v. Inspecteur der Belastingdienst
                                                                                      Grote Ondernemingen, Amsterdam
                                                                                                 ( Case C-l 90/95 )
References for a preliminary ruling from the Pretura                                                ( 95/C 208/28 )
Circondariale di Roma — Sezioni distaccate di Castelnuovo
di Porto e di Tivoli by orders of that court of 1 8 February
 1995 ( C-l 86/95 ) and 27 February 1995 ( C-187/95 ) in                 Reference has been made to the Court of Justice of the
criminal proceedings pending before that court against                   European Communities by a judgment of the Gerechtshof
Luciano Iommi and Others , Angelo Deodati and Luchini                     ( Regional Court of Appeal ), Amsterdam, of 7 June 1995
                                   Aldo                                  which was received at the Court Registry on 19 June 1995 ,
                                                                          for a preliminary ruling in the case of ARO Lease BV v.
                 ( Cases C-l 86/95 and C-l 87/95 )                       Inspecteur der Belastingdienst Grote Ondernemingen ( Head
                              ( 95/C 208/26 )                            of the Large Undertakings Unit of the Revenue Office ),
                                                                          Amsterdam, on the following question :
 Reference has been made to the Court of Justice of the
 European Communities by orders of the Pretura                            Must Article 9 ( 1 ) of the Sixth Council Directive
 Circondariale di Roma — Sezioni distaccate di Castelnuovo                77/388/EEC of 17 May 1977 on the harmonization of the
 di Porto e di Tivoli ( District Magistrate 's Court, Rome —              laws of the Member States relating to turnover taxes —
 Castelnuovo di Porto and Tivoli Sections ), of 18 February               common system of value added tax: uniform basis of
 1995 ( C-l 86/95 ) and 27 February 1995 , which were                     assessment, be interpreted as meaning that a taxable person
 received at the Court Registry on 15 June 1995 for a                     established in the Netherlands who, as such, makes
 preliminary ruling in the criminal proceedings pending                   available to third parties approximately 6 800 passenger
 before that court against Iommi Luciano and Others,                      cars under operational-lease agreements , of which
 Angelo Deodati and Aldo Luchini on questions identical to                approximately 800 were purchased and made available in
 those in Cases C-135/95 , C-140/95 and C-141 /95 (')•                    Belgium, where ARO does not have an office, supplies those
                                                                          services from a fixed establishment in Belgium ?
 (') See Of No C 159 , 24 . 6 . 1995 .