CELEX: C1995/137/72
Language: en
Date: 1995-06-03 00:00:00
Title: Action brought on 16 March 1995 by Compagnie Générale Maritime and others against the Commission of the European Communities (Case T-86/95)

No C 137/32           EN                  Official Journal of the European Communities                                     3 . 6 . 95
Action brought on 16 March 1995 by D.I.R. International              EFDO funding in relation to the distribution of the films
Film Sri, Nostradamus Enterprises Ltd, Union P.N. Sri,               'Nostradamus ' and 'Maniaci sentimentali '.
United International Pictures BV, United International
Pictures AB , United International Pictures APS, United              The applicants submit that the act of 5 December 1994
International Pictures A/S, United International Pictures            and/or the act by which the Commission purported to
EPE, United International Pictures OY and United                     instruct EFDO , on or prior to 5 December 1994, to reject
International Pictures y Cia SRC against the Commission of           UIP's applications must be annulled on any or all of the
                 the European Communities                            following grounds:
                        ( Case T-85/95 )
                                                                     ( a ) infringement of the selection criteria set out in the
                          ( 95/C 137/71 )                                    EFDO ' Guidelines';
                                                                     ( b ) infringement of the philosophy and the stated aims of
               (Language of the case: English)                               the Media programme;
An action against the Commission of the European                     (c ) lack of proper reasoning.
Communities was brought before the Court of First
Instance of the European Communities on 16 March 1995
by D.I.R. International Films Sri and Others, represented by
Michel Waelbroeck, with an address for service in
Luxembourg at the chambers of Ernest Arendt, 8—10, rue
                                                                     Action brought on 16 March 1995 by Compagnie Generale
Mathias Hardt, L-2010 Luxembourg.
                                                                     Maritime and others against the Commission of the
                                                                                           European Communities
The applicants claim that the Court should :                                                   ( Case T-86/95 )
                                                                                                 ( 95/C 137/72
— annul :
                                                                                     (Language of the case: English)
    — the act of 5 December 1994 , notified to UIP
        ( London ) on 10 January 1995 , by which the                 An action against the Commission of the European
        European Film Distribution Office (' EFDO ') turned          Communities was brought before the Court of First
        down the applications made by various UIP                    Instance of the European Communities on 16 March 1995
        subsidiaries for EFDO funding in relation to the             by Compagnie Generale Maritime and others, represented
        distribution of the films 'Nostradamus ' and ' Maniaci       by Mr Nicholas Forwood, QC, and Mr Philip Ruttley,
        sentimentali',                                               solicitor, with an address for service in Luxembourg at the
                                                                     Cabinet Arendt & Medernach, Boite Postale 39, L-2010
    — and/or the act by which the European Commission                Luxembourg.
        instructed or purported to instruct EFDO to take this
        act ,                                                        The applicants claim that the Court should :
— order the Commission to state whether it issued separate           — declare their application admissible and well-founded,
    instructions, either orally or in writing, with respect to
                                                                     — annul the Commission Decision of 21 December 1994
    the above act of 5 December 1994 and to produce or to
    procure that EFDO produce all correspondence and                      relating to the Far Eastern Freight Conference
    other documents ( including but not limited to internal                ( IV/33.218 ), and
    and external      documents,     minutes of EFDO        or
    Commission meetings ) evidencing such instructions ,             — order the Commission to pay the applicants ' costs in this
                                                                          action .
— if such instructions were issued in an oral form and if
    there exist no written record evidencing them, order the         Pleas in law and main arguments adduced in support:
    defendant to provide or to produce that EFDO provide a           In the present application, the Commission's Decision of
    written summary of such instructions,                            21 December 1994 in case IV/33.218 is challenged by 13 of
                                                                     its 14 addressees, all of them member lines of the Far Eastern
— order the Commission to pay the costs .                            Freight Conference ( FEFC ). By this Decision, the defendant
                                                                     institution held that the applicants have infringed Article 85
                                                                     of the EC Treaty by agreeing common prices for inland
Pleas in law and main arguments adduced in support:                  transport services supplied within the EC as part of a
                                                                     multimodal transport operation for the carriage of
The applicants challenge the act of 5 December 1994,                 containerized cargo .
whereby the European Film Distribution Office ('EFDO'), a
body established within the framework of the Media                   It follows from this Decision that, according to the
Programme, rejected the applications made by various                 Commission's position in relation to the application of the
subsidiaries of United International Pictures ('UIP') for            competition rules to multimodal international maritime
 ---pagebreak--- 3 . 6 . 95               EN                 Official Journal of the European Communities                                   No C 137/33
transport services, only the maritime part of the service —            ( f) Finally, several procedural infringements have affected
i.e. the transport by seagoing vessel from or to a Community                   the very basis of the contested Decision, namely failure
port — is subject to the provisions of Regulation ( EEC )                      to use the consultation/conciliation procedures
No 4056/86 , whereas the provision of carrier haulage is                       provided under Regulation ( EEC ) No 4056/86 or the
subject to the provisions of Regulation ( EEC )                                UN Code, the failure to consult the appropriate
No 1017/68 .                                                                   Advisory Committee and failure to give adequate
                                                                               reasoning pursuant to Article 190 of the EC Treaty.
The applicants submit that the contested Decision should be
annulled on the basis of the following reasons :
( a ) A proper definition of the relevant market would lead
       to the conclusion that multimodal transport offered by
       them form part of the market for international                  Action brought on 17 March 1995 by Societa Cementerie
       maritime transport services as a whole. Consequently,           del Tirreno SpA against the Commission of the European
       Regulation ( EEC ) No 4056/86 , and not Regulation                                           Communities
       ( EEC ) No 1017/86 , is the applicable Regulation.                                         (Case T-87/95 )
                                                                                                   ( 95/C 137/73
( b ) In the alternative, even if the Court should accept the
       Commission 's      contention   that   the   line 's inland
       activities are to be regarded as distinct services from the
                                                                                          (Language of the case: Italian)
       viewpoint of Article 85 ( 1 ) on a market for inland
       transport services , the Commission still does not              An action against the Commission of the European
       adequately define or consider the characteristics of this       Communities was brought before the Court of First
       market, and so fails properly to assess whether the             Instance of the European Communities on 17 March 1995
       agreement has an appreciable effect on competition or           by Societa Cementerie del Tirreno SpA ('Cementir'), with its
       inter-State trade within the market.                            registered office in Rome, represented by Gian Michele
                                                                       Roberti and Antonio Tizzano, both of the Naples Bar, with
                                                                       an address for service in Luxembourg at the Chambers of
 (c ) In examining the applicability of Article 85 ( 3 ), the          Alain Lorang, 51 Rue Albert l er.
       Commission ignores the benefits which are brought
       about through network rationalization — and the
       consequent minimization of overall costs to the carrier         The applicant claims that the Court should :
       and thus to the shipper — or the role that a uniform
       multimodal tariff plays in allowing individual lines each       — annul in whole or in part Commission Decision
       to optimize their individual networks, while                           94/815/EC of 30 November 1994 relating to a
       maintaining overall uniformity of rates offered to                     proceeding under Article 85 of the EC Treaty ( Cases
       shippers from any given inland point. At the same time,                IV/33.126 and 33.322 — Cement) ( l ),
       the contested Decision pays no regard to the
       improvements in productivity or technical or economic
       progress that come about through more effective                 — annul or reduce the fine imposed on Cementir under
       container control , more effective movements of                        Article 9 of that Decision,
       containers and all other aspects of the multimodal
       service .                                                       — order the Commission to pay the costs.
 ( d ) The contested Decision keeps silent about the fact that          Pleas in law and main arguments adduced in support:
       few lines conferences, if any, do not have a miltimodal
       tariff. To deny liner conference's block exemption in           The applicant challenges the lawfulness of the Decision in
       Article 3 of Regulation (EEC ) No 4056/86 would                  three respects:
       render the block exemption of no or very little practical
       value to the very class of beneficiaries it was intended to         I.   Fundamental     errors    of   fact  and   law   in  the
       assist. This cannot have been the intention of the
                                                                                ascertainment and legal assessment of the alleged
       Commission in proposing its draft Regulation in 1981                     infringements.
       nor of the Council in adopting Regulation ( EEC )
       No 4056/86 .
                                                                         II . Infringement of essential procedural requirements and
                                                                                of the rights of the defence .
 (e ) The applicant's rights to defence have been violated, in
       that inter alia, the Commission relied extensively on            III. The fine imposed by the Commission was also
       evidence and arguments not relied upon in the                            unlawful and must therefore be annulled or reduced,
       statement of objections and that new allegations were                    either because the alleged infringements were totally or
       made in the Decision which did not appear in the                         partially non-existent or, in the alternative and in any
       statement of objections .                                                event, because the Commission failed correctly to