CELEX: C1995/101/33
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 17 February 1995 by Dyckerhoff Aktiengesellschaft against the Commission of the European Communities (Case T-35/95)

22 . 4 . 95        | EN                           Official Journal of the European Communities                                     No C 101 / 15
— the Commission infringed the applicant's right to a fair                       Pleas in law and main arguments adduced in support:
     hearing and the principle of fair procedure, in that it
     failed to make clear, either in the statement of objections                  ( 1 ) The applicant complains that, by reasons of procedural
     or in the decision, precisely which of the acts of the                             defects, the Commission has infringed the applicant's
     applicant were complained of.                                                      right to a fair hearing, in that it:
                                                                                        — did not give the applicant any access whatever to
The applicant further pleads as follows regarding the                                       parts of the documentation in the proceeding, and
substance of the matter :                                                                   gave access to other documents only in the form of
                                                                                             illegible copies,
— the applicant at no time participated in any agreement
     on non-transhipment to home markets and the                                        — failed to provide German translations of numerous
     regulation of cross-border supplies of cement,                                         items of documentary evidence and extensive parts
                                                                                            of the provisional minutes of hearings,
— the Commission's complaint that the applicant
     communicated to Cembureau-The European Cement                                      — prescribed an unreasonably short time limit for
     Association the unpublished prices actually charged by                                 the submission of replies to the statement of
     the applicant is unfounded . The Commission's                                          objections,
     assumptions in that regard are based on errors of                                  — omitted, contrary to the principles governing
     fact.
                                                                                            official investigations, to include within the
                                                                                            subject-matter of the proceeding its internal
In the alternative, the fine should be reduced, since,                                      documentation regarding discussions between the
according even to the contents of the decision itself, the                                   Commissioner responsible for competition matters
participation by the applicant in the alleged infringements                                 and the undertakings concerning aid to certain
was minimal, and the applicant could not have assumed that                                   Greek producers and discussions concerning the
the communication of publicly available gross price lists                                   basing point system,
constituted an infringement of Article 85 of the EC
Treaty.                                                                                 — formulated the statement of objections sent to the
                                                                                            applicant in a manner which was incomplete and
                                                                                            insufficiently specific.
                                                                                 ( 2 ) The contested decision is unlawful, in that:
Action brought on 17 February 1995 by Dyckerhoff                                        — it is inadequately reasoned and fails, in breach of the
Aktiengesellschaft against the Commission of the European                                   applicant's right to a fair hearing, to deal with the
                           Communities                                                      defence open to the applicant,
                         (Case T-35/95 )                                                — it misconstrues the actual cicumstances in the
                          ( 95/C 101 /33 )                                                  cement market and therefore necessarily draws
                                                                                            erroneous conclusions regarding the possibility of
                                                                                            cross-border competition,
               (Language of the case: German)
                                                                                        — it fails adequately to take into consideration the
An action against the Commission of the European                                            particular competitive situation of the applicant,
Communities was brought before the Court of First
Instance of the European Communities on 17 February                                     — it goes beyond the legal limits within which the
1995 by Dyckerhoff Aktiengesellschaft of Wiesbaden                                          alleged conduct of Cembureau and/or of certain
( Federal Republic of Germany ), represented by Claus Tessin                                sub-groups and of the national associations may be
and Frank Montag, Rechtsanwàlte, Cologne, with an                                           imputed to undertakings .
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand-Rue .                                                       ( 3 ) The applicant contends, lastly, that individual articles
                                                                                        of the contested decision are unlawful, since they are
                                                                                        based neither on the actual findings contained in the
The applicant claims that the Court should :                                            Decision nor in Article 85 ( 1 ) of the EC Treaty:
1 , annul Articles 1 , 3 ( 3 ) (a ), 4 ( 1 ), (2 ) and ( 3 ) ( a ), 5 , 7, 8 , 9        — contrary to what is stated in Article 1 of the
     and 10 of Commission Decision C(94 ) 3077 final of                                     Decision, the applicant did not participate in any
     30 November 1994 relating to a proceeding under                                        Cembureau agreement, since no such agreement
     Article 85 of the EC Treaty ( Cases IV/33.126 and                                      existed,
     33.322 — Cement), in so far as they concern the
     applicant;                                                                         — there is no evidence to support the finding in Article
                                                                                            3 ( 3 ) ( a ) of the Decision that the applicant
2 , in the alternative, reduce to a reasonable sum the fines of                             participated in agreements and concerted practices
     ECU 12 296 000 and ECU 988 000 imposed on the                                          involving the regulation of cement supplies from
     applicant by Articles 9 and 10 of the contested                                        France to Germany; in any event, discussions held
     Decision;                                                                              in that regard did not result in any agreements or
                                                                                            practices contrary to Article 85 ( 1 ) of the EC
3 , order the Commission to pay the costs.                                                  Treaty,
 ---pagebreak---  No C 101 /16           EN                   Official Journal of the European Communities                                     22 . 4 . 95
      — the allegation in Article 4 ( 1 ) of the Decision that          (2 ) in the event that the Court does not grant the
          the applicant participated in an agreement on the                   application referred to in ( 1 ) above, modify Article 9 of
          setting-up of the 'Cembureau Task Force' or                         the aforesaid Decision so as to cancel or substantially
          'European Task Force' is incorrect,                                 reduce the fine imposed on Vicat;
      — contrary to what is stated in Article 4 (2 ) of the             ( 3 ) order the Commission to pay all the costs,
          Decision, the applicant did not participate in any                  documentary evidence in support of which will be
          agreement on the setting-up of the Joint Trading                    supplied at a later date .
          Company, Intercement; nor was it ever a
          shareholder in that undertaking,                              Pleas in law and main arguments adduced in support:
      — contrary to what is stated in Article 4 ( 3 ) of the            The applicant pleads as follows in support of its
          Decision, the applicant at no time participated               application:
          in concerted practices designed to withdraw
          Calcestruzzi      as   a  customer   from        the  Greek      I. Procédural defects :
          producers,
                                                                              1 , Defective notification of the objections:
      — there is no actual evidence or legal justification for
          the findings in Article 5 of the Decision that the                       ( a ) failure to specify individually the objection
          applicant participated, within the framework of                                of participation in the agreement on non­
          the ECEC, in any exchange of information or                                    transhipment to home markets;
          agreements designed to prevent incursions into
          national markets, since the activities of the ECEC                       ( b ) failure to specify individually the evidence
          related solely to markets in third countries,                                  showing the participation by the applicant in
                                                                                         the infringement referred to in Article 1 .
      — Article 7 of the Decision is untenable in law and in
          fact, since it was not the task of the WCC to protect               2, breach of the obligation to provide access;
          domestic markets and to export the production
          surpluses of WCC members by universal consent to                    3 , infringement of the substantive rules requiring the
          markets in third countries; in actual fact, there were                  Advisory Committee to be consulted;
          no rules regarding domestic markets, and the
          activities of the WCC related exclusively to markets                4, breach of the principle of impartiality.
          in third countries,
                                                                         II. Infringement of Article 85 by reason of manifest defects
      — lastly, Articles 9 and 10 of the Decision seriously                   in the statement of reasons for the decision :
          disregard the requirement of fault, the question of
          prescription and the criteria laid down by the Court                1 . The Commission has failed to adduce sufficient
          of Justice as to the determination of the level of                      evidence in law to show that the applicant
          fines .                                                                 participated in a 'general agreement on
                                                                                  non-transhipment to home markets'.
                                                                              2. Absence of any concerted practice with Buzzi: the
                                                                                  applicant contests, first, the allegation that its
                                                                                  exchange of price information with Buzzi is capable
Action brought on 17 February 1995 by Vicat SA against                            of constituting an infringement of Article 85 ;
       the Commission of the European Communities                                 second, it considers that the conduct found to have
                          ( Case T-37/95 )                                        taken place is justified on grounds other than those
                            ( 95/C 101 /34 )                                      put forward by the Commission and that that
                                                                                  justification is such that, in accordance with settled
                                                                                  case-law, the conduct in question cannot qualify as
                  (Language of the case: French)                                  an infringement in the present case.
An action against the Commission of the European                       III. The applicant contends that the fine is manifestly
Communities was brought before the Court of First                             excessive, even assuming that certain facts alleged
Instance of the European Communities on 17 February                           against it are found to constitute an infringement:
1995 by Vicat SA, the head office of which is in Paris,
represented by Edouard Didier and Jean-Claude Rivalland,                      1 . in determining the amount of the fine imposed on
of the Paris Bar, with an address for service in Luxembourg                       the applicant, the Commission manifestly failed to
at the Chambers of Carlos Zeyen, 67 Rue Ermesinde.                                take account of the specific circumstances
                                                                                  attaching to the applicant. In so doing, the
The applicant claims that the Court should :                                      Commission wrongly assessed the gravity of the
                                                                                  infringement as regards the applicant;
( 1 ) annul, wholly or in part, Articles 1 , 3 ( 1 ) (c ) and 9 of the
      Decision of the Commission of 30 November 1994 in                       2 , the duration of the infringements found by the
      so far as those articles concern Vicat;                                     Commission to have been committed by the