CELEX: C1998/299/24
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 23 July 1998 by Moritz J. Weig GmbH & Co. KG against the judgment delivered on 14 May 1998 by the Third Chamber (Extended Composition) of the Court of First Instance of the European Communities in Case T-317/94 Moritz J. Weig GmbH & Co. KG and Commission of the European Communities (Case C-280/98 P)

C 299/14             EN                  Official Journal of the European Communities                                    26.9.98
    refer the case back to the Court of First Instance for          Appeal brought on 23 July 1998 by Moritz J. Weig
    judgment,                                                       GmbH & Co. KG against the judgment delivered on
                                                                    14 May 1998 by the Third Chamber (Extended
                                                                    Composition) of the Court of First Instance of the
Ð order the costs to be reserved.                                   European Communities in Case T-317/94 Moritz J. Weig
                                                                    GmbH & Co. KG and Commission of the European
                                                                                             Communities
Pleas in law and main arguments adduced in support:
                                                                                         (Case C-280/98 P)
                                                                                            (98/C 299/24)
Ð Contradictory reasoning: the Court of First Instance
    has not drawn the appropriate conclusions from its
    own findings of the inadequacy of the statement of              An appeal against the judgment delivered on 14 May
    reasons for the Commission's decision as regards the            1998 by the Third Chamber (Extended Composition) of
    determination of the general level of fines. In finding         the Court of First Instance of the European Communities
    that the Commission's decision did not satisfy the              in Case T-317/94 between Moritz J. Weig GmbH & Co.
    requirements of Article 190 of the Treaty, the Court            KG and Commission of the European Communities was
    was under an obligation to draw all the appropriate             brought before the Court of Justice of the European
    conclusions from that finding and therefore to annul            Communities on 23 July 1998 by Moritz J. Weig GmbH
    the measure at issue. The fact that the Commission              & Co. KG, represented by Thomas Jestaedt and Verena
    was unaware of the precise extent of its duty to state          von Bomhard, Rechtsanwälte, Boesebeck Droste, 9 Avenue
    reasons cannot constitute a ground for refusing to              des Gaulois/Gallierslaan, B-1040 Brussels, with an address
    annul the Decision.                                             for service in Luxembourg at the Chambers of Philippe
                                                                    Dupont, Arendt & Medernach, 8Ð10 rue Mathias Hardt,
                                                                    L-2010 Luxembourg.
    To accept generally that the reasons for a decision may
    validly be furnished in proceedings before the                  The appellant claims that the Court should:
    Community judicature renders the obligation to state
    reasons meaningless. Furthermore, the Commission                1. set aside the judgment of the Court of First Instance of
    cannot, without infringing the principle of collegiality,           14 May 1998 (1) and declare void Article 3 of
    give the reasons for its decision in the course of the              Commission Decision 94/601/EC (2) of 13 July 1994
    proceedings before the Court,                                       relating to a proceeding under Article 85 of the EC
                                                                        Treaty (IV/C/33.833 Ð Cartonboard);
Ð Erroneous interpretation of the concept of effects of
    the infringement on the market'; infringement of the            2. order the Commission to pay the appellant's costs
    principle of proportionality: for the purpose of                    before the Court of First Instance and the Court of
    determining the gravity of the infringement, regard                 Justice.
    should be had only to the effect on actual prices (in
    comparison with those which might have occurred in              Alternatively: that the Court should:
    the absence of collusion). The restrictive impact on
    competition relates only to the implementation of the           1. set aside the judgment of the Court of First Instance of
    agreement by the undertaking; although its existence is             14 May 1998 and fix at ECU 1 million the fine
    a necessary condition for the appearance of an actual               imposed in Article 3 of Commission Decision 94/601/
    effect of the infringement on the market, it does not               EC of 13 July 1994 relating to a proceeding under
    necessarily follow that the agreement had an actual                 Article 85 of the EC Treaty (IV/C/33.833 Ð
    impact on prices or on the other competitive                        Cartonboard);
    conditions of the market. The Court of First Instance
    infringed the principle of proportionality in upholding         2. order the Commission to pay two thirds of the
    the level of the fine while finding that the Commission             appellant's costs before the Court of First Instance and
    had not proved that the infringement had affected                   the whole of the appellant's costs before the Court of
    cartonboard prices,                                                 Justice.
                                                                    Pleas in law and main arguments adduced in support:
Ð Infringement of the principle of equal treatment: the
    Court of First Instance held Cascades responsible for
    the conduct of two subsidiaries prior to their                  Ð The contested judgment wrongly failed to annul the
    acquisition. On the other hand, Mayr-Melnhof (Case                  fine on the ground that the statement of reasons for it
    T-347/94) was not held responsible for the conduct of               was inadequate. The fact that the Commission was
    its subsidiary Eerbeek in respect of the period prior to            prepared, during the proceedings before the Court, to
    its acquisition.                                                    provide all information concerning the method of
                                                                        calculating the fines should not have been taken into
                                                                        account when considering the adequacy of the
(1) OJ C 209, 4.7.1998, p. 30.                                          statement of reasons.
(2) OJ C 351, 10.12.1994, p. 16.
                                                                    Ð Infringement of the principle of equal treatment and
                                                                        Article 15(2) of Council Regulation No 17 and
 ---pagebreak--- 26.9.98               EN                Official Journal of the European Communities                                  C 299/15
    Article 172 of the EC Treaty: unlike in the case of the                considerably on the ground that such statement of
    other parties involved, the Court did not hold that its                reasons was inadequate;
    finding that the appellant had participated in the cartel
    for a shorter period should be reflected by an
    appropriate reduction in the fine.                                 2. in the alternative, annul the contested judgment to
                                                                           the extent to which the Court of First Instance
                                                                           does not consider that, by not taking account of
    When assessing the gravity of the infringement the                     the effects of the devaluation of the peseta against
    Court of First Instance wrongly took the view that the                 the ecu, the Commission infringed the principle of
    absence of economic effects of the infringement was                    equal treatment or, in the alternative, reduce the
    not a mitigating factor in regard to the fine.                         fine so as to take account of that devaluation;
                                                                       3. in the alternative, annul the contested judgment to
    Lastly, the Court of First Instance erred in law in
                                                                           the extent to which it does not order the
    finding that the appellant's cooperation should not be
                                                                           Commission to pay, at first instance, the totality of
    taken into account so as to reduce the fine.
                                                                           the costs and interest deriving from the security for
                                                                           or possible payment of all or part of the fine, and
(1) OJ C 209, 4.7.1998, p. 32.                                             decide that the interest accruing on the fine
(2) OJ L 243, 19.9.1994, p. 1.                                             accrues only from the time at which the judgment
                                                                           of the Court of First Instance becomes enforceable,
                                                                           and consequently order the Commission to pay the
                                                                           costs and interest connected with security for or
                                                                           possible payment of the fine;
Appeal brought on 23 July 1998 by Enso EspanÄola, SA               2. order the respondent in the proceedings before the
against the judgment delivered on 14 May 1998 by the                   Court of Justice of the European Communities to pay
Third Chamber, Extended Composition, of the Court of                   the costs, and give a decision to the effect that the
First Instance of the European Communities in Case                     costs be paid by the defendant at first instance in the
       T-348/94 between Enso EspanÄola, SA and the                     event of the present appeal being held to be wholly or
         Commission of the European Communities                        partly well founded.
                      (Case C-282/98 P)
                        (98/C 299/25)                              Pleas in law and main arguments adduced in support:
An appeal against the judgment delivered on 14 May                 Ð Infringement of Community law:
1998 by the Third Chamber, Extended Composition, of
the Court of First Instance of the European Communities
in Case T-348/94 between Enso EspanÄola, SA and the                    Ð misapplication and misinterpretation of Article 190
Commission of the European Communities was brought                         of the Treaty establishing the European
before the Court of Justice of the European Communities                    Community as regards the lack of a statement of
on 23 July 1998 by Enso EspanÄola, SA, represented by                      the reasons on which the Decision was based in
Antonio Creus, of the Barcelona Bar, and Eva Contreras                     relation to the fine,
Ynzenga, of the Madrid Bar, with an address for service at
the Chambers of Cuatrecasas Abogados, Avenue                           Ð misinterpretation and misapplication of the
d'Auderghem 78, Brussels.                                                  principle of equal treatment through failure by the
                                                                           Court of First Instance correctly to evaluate the
                                                                           devaluations of the Spanish peseta which gave rise
The appellant claims that the Court of Justice should:
                                                                           to an increase in the fine to be paid by ENSO
                                                                           EspanÄola, SA as compared with the fines to be
                                                                           paid by other undertakings whose currencies have
1. set aside the judgment of the Court of First Instance in
                                                                           not lost value or have indeed increased in value,
    Case T-348/94 (1) to the extent set out below and draw
    all the legal consequences of the setting aside of that
    judgment, whether it gives a decision on the substance             Ð incoherent reasoning on the part of the Court of
    itself or refers the case back to the Court of First                   First Instance regarding its failure to order the
    Instance for judgment, and in particular:                              Commission to pay the costs and interest deriving
                                                                           from the provision of security for or payment of
    1. annul the contested judgment to the extent to                       the fine.
         which it treats the Decision as not infringing
         Article 190 of the EC Treaty as far as the fine is        (1) OJ C 209, 4.7.1998, p. 36.
         concerned and, in consequence, annul the fine on
         the ground of lack of a statement of the reasons
         for the Decision or, in the alternative, reduce it