CELEX: C2000/247/14
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-219/00 P: Appeal brought on 31 May 2000 by Cementir — Cementerie del Tirreno SpA against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities in Joined Cases T-25/95, T-36/95, T-30/32/95, T-34-39/95, T-42-46/95, T-48/95, T-50-65/95, T-68-71/95, T-87-88/95 and T-103-104/95 between Cimenteries CBR and Others and the Commission of the European Communities

C 247/12               EN                       Official Journal of the European Communities                                      26.8.2000
—     manifest error in the assessment of the respective                         (ii) and/or annul, or at least reduce, the fine imposed on
      responsibilities in the infringement relating to the Cembu-                      Cementir;
      reau single agreement;
—     misassessment of mitigating and aggravating circum-                  —     in the alternative, annul the contested judgment in whole
      stances;                                                                   or in part and refer the matter back to the Court of First
                                                                                 Instance for a ruling on the merits in the light of
                                                                                 directions provided by the Court;
—     error in the calculation of the fines on account of the
      erroneous calculation of the duration of the infringement;
                                                                           —     order the Commission to pay the costs of the present
—     manifest error in respect of the turnover for the preceding                proceedings and the proceedings before the Court of First
      year;                                                                      Instance in Case T-87/95.
—     error in the method used to calculate the fine (fixing of
      fines in ecu and choice of conversion rate).
                                                                           Pleas in law and main arguments
(1) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).              The judgment of the Court of First Instance is vitiated by
                                                                           erroneous application of Community law and infringement of
                                                                           the rights of the defence arising from the impossibility of
                                                                           obtaining access to all the documents contained in the
                                                                           Commission’s file during the administrative procedure.
                                                                           The appellant argues that the legal conclusions of the Court of
                                                                           First Instance concerning the meetings of the Head Delegates
Appeal brought on 31 May 2000 by Cementir — Cemen-
                                                                           of Cembureau lack a coherent basis in law and logic and reveal
terie del Tirreno SpA against the judgment delivered on
                                                                           a distortion of essential evidence. The Court of First Instance
15 March 2000 by the Court of First Instance of the
                                                                           did not carry out an accurate assessment of the specific
European Communities in Joined Cases T-25/95, T-36/95,
                                                                           position of Cementir, and thus arrived at a legal qualification
T-30/32/95, T-34-39/95, T-42-46/95, T-48/95, T-50-65/95,
                                                                           of that company’s conduct devoid of all foundation, conflicting
T-68-71/95, T-87-88/95 and T-103-104/95 between
                                                                           with the principles of the burden of proof and the presumption
Cimenteries CBR and Others and the Commission of the
                                                                           of innocence, and defective in its statement of reasons.
                     European Communities
                        (Case C-219/00 P)                                  Concerning access to the file relating to the existence of the
                                                                           Cembureau agreement, Cementir maintains that the Court of
                         (2000/C 247/14)                                   First Instance was wrong to hold that the failure to grant access
                                                                           to certain documents, specified by the appellant following
                                                                           measures of organisation by the Court of First Instance, did
An appeal against the judgment delivered on 15 March 2000                  not constitute an infringement of the appellant’s defence
by the Court of First Instance of the European Communities in              rights.
Joined Cases T-25/95, T-36/95, T-30/32/95, T-34-39/95,
T-42-46/95, T-48/95, T-50-65/95, T-68-71/95, T-87-88/95
and T-103-104/95 between Cimenteries CBR and Others and
                                                                           Concerning the exchange of price information during the
the Commission of the European Communities was brought
                                                                           Head Delegates’ meetings, the appellant maintains that the
before the Court of Justice of the European Communities on
                                                                           hypothesis by the Court of First Instance, according to which
31 May 2000 by Cementir — Cementerie del Tirreno SpA,
                                                                           price information made it possible to compare existing price
with its registered office in Rome (Italy), represented by
                                                                           levels on the various national markets, is without foundation.
Antonio Tizzano, Gian Michele Roberti and Paola Criscuolo
                                                                           An exchange taking place in those circumstances could not in
Gaito, of the Naples Bar, with an address for service in Belgium
                                                                           any way reduce market uncertainties and could not therefore
at the Chambers of Antonio Tizzano, Place du Grand Sablon
                                                                           have contributed in any way to the drawing up or implemen-
36, 1000 Brussels.
                                                                           tation of the alleged Cembureau agreement. Seen in that light,
                                                                           the exchange could not be regarded as incompatible with
The appellant claims that the Court should:                                Article 81 EC (ex Article 85).
—     annul the contested Judgment in whole or in part, and
      accordingly:                                                         With reference to the concerted practice alleged in
                                                                           Article 4(3)(a) of the decision, Cementir maintains that there is
      (i)   declare Commission Decision 94/8155/EC of                      no evidence to indicate that it participated. The assessments of
            30 November 1994 (1) (Cases 1V/33.126 and                      the Court of First Instance on that point therefore lack adequate
            33.322 Cement) wholly or partially void;                       reasoning.
 ---pagebreak--- 26.8.2000             EN                     Official Journal of the European Communities                                        C 247/13
The judgment of the Court of First Instance is also vitiated by         Pleas in law and main arguments
errors of law and defective reasoning in relation to the concept
of a single and continuous agreement — the Cembureau
agreement censured in Article 1 of the decision.                        The Republic of Finland has failed to fulfil its obligations under
                                                                        Article 2 of the said Sixth VAT Directive 77/388/EEC, by
                                                                        maintaining in force legislation under which supplies of works
In the appellant’s submission, the contested judgment warrants          of art by artists or intermediaries and imports of works of art
censure also in the part relating to the penalty, which annulled        bought directly from artists are exempted from value added
or reduced by reason of the following considerations:                   tax.
—    erroneous assessment of the duration and seriousness of
     the alleged infringements;                                         Under the Sixth VAT Directive it is not possible to exempt
                                                                        supplies or imports of works of art from value added tax.
—    the rejection of the request for amendment of the fine;            Nor is exemption permitted under point 2(n) of Part IX of
                                                                        Annex XV to the Act concerning the conditions of accession
                                                                        of the Republic of Austria, the Republic of Finland and the
—    insufficient reasons for the judgment in relation to the
                                                                        Kingdom of Sweden and the adjustments to the Treaties on
     reference turnover;
                                                                        which the European Union is founded.
—    misassessment of Cementir’s criticism concerning the
     limitation referred to in Article 2(1);
                                                                        (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
—    infringement of the principles of fairness and pro-                    harmonisation of the laws of the Member States relating to
     portionality and defective reasoning in relation to the                turnover taxes — Common system of value added tax: uniform
     assessment of the criteria for determining fines.                      basis of assessment (OJ L 145 of 13.6.1977, p. 1).
(1) OJ L 343, 30.12.1994, p. 1.
                                                                        Action brought on 9 May 2000 by the Republic of Finland
                                                                          against the Commission of the European Communities
Action brought on 8 May 2000 by the Commission of the
  European Communities against the Republic of Finland                                            (Case C-170/00)
                        (Case C-169/00)                                                          (2000/C 247/16)
                        (2000/C 247/15)                                 An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of Justice of the European
An action against the Republic of Finland was brought before            Communities on 9 May 2000 by the Republic of Finland,
the Court of Justice of the European Communities on 8 May               represented by Tuula Pynnä, Valtionasiamies, Legislative
2000 by the Commission of the European Communities,                     Adviser in the Legal Department of the Ministry of Foreign
represented by Esa Paasivirta and Enrico Traversa, of its Legal         Affairs, acting as Agent, and Elisabeth Bygglin, Legislative
Service, acting as Agents, with an address for service in               Adviser in that ministry, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, Wagner            Luxembourg at the Finnish Embassy, 2 Rue Heine.
Centre, Kirchberg.
                                                                        Finland claims that the Court should:
The Commission claims that the Court should:
                                                                        —     Annul Commission Decision 2000/216/EC of 1 March
1.   Declare that, by maintaining in force legislation under                  2000 excluding from Community financing certain
     which supplies of works of art by artists or intermediaries              expenditure incurred by the Member States under the
     and imports of works of art bought directly from artists                 Guarantee Sect on of the European Agricultural Guidance
     are exempted from value added tax, the Republic of                       and Guarantee Fund (EAGGF) (1) in so far as it refuses to
     Finland has failed to fulfil its obligations under Article 2             charge to the EAGGF the sum of FIM 7 270 885,76
     of the Sixth VAT Directive (1);                                          included in Finland’s expenditure for the 1996 and 1997
                                                                              financial years of the EAGGF Guarantee Section with
2.   Order Finland to pay the costs.                                          respect to meat premiums;