CELEX: C1998/299/37
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 31 July 1998 by CPL Imperial 2 SpA and Unifrigo Gadus Srl against the judgment delivered on 9 June 1998 by the Third Chamber of the Court of First Instance of the European Communities in Joined Cases T-10/97 and T-11/97 between Unifrigo Gadus Srl and CPL Imperial 2 SpA and the Commission of the European Communities (Case C-299/98 P)

C 299/24              EN                Official Journal of the European Communities                                  26.9.98
    1. The Commission Decision of 13 July 1994 relating            Appeal brought on 31 July 1998 by CPL Imperial 2 SpA
        to a proceeding under Article 85 of the Treaty             and Unifrigo Gadus Srl against the judgment delivered on
        (IV/C 33.833 Ð Cartonboard) notified to the                9 June 1998 by the Third Chamber of the Court of First
        appellant on 5 August 1994 and published in the            Instance of the European Communities in Joined Cases
        Official Journal of the European Communities on            T-10/97 and T-11/97 between Unifrigo Gadus Srl and
        19 September 1998 is void in so far as it concerns         CPL Imperial 2 SpA and the Commission of the European
        the appellant,                                                                      Communities
                                                                                        (Case C-299/98 P)
        or, in the alternative,
                                                                                           (98/C 299/37)
        the fine is reduced.
                                                                   An appeal against the judgment delivered on 9 June 1998
    2. Order the Commission to pay the costs of the                by the Third Chamber of the Court of First Instance of the
        proceedings.                                               European Communities in Joined Cases T-10/97 and T-11/
                                                                   97 Unifrigo Gadus Srl and CPL Imperial 2 SpA v. the
2. In the further alternative:                                     Commission of the European Communities was brought
                                                                   before the Court of Justice of the European Communities
                                                                   on 31 July 1998 by CPL Imperial 2 SpA, established in
    set aside the contested judgment and refer the case            Pescara (Italy), and Unifrigo Gadus Srl, established in
    back to the Court of First Instance for judgment.              Naples (Italy), represented by Giuseppe Celona, of the
                                                                   Milan Bar, with an address for service in Luxembourg at
Pleas in law and main arguments adduced in support:                the Chambers of Georges Margue, 20 Rue Philippe II.
Ð Infringement of the obligation to give reasons for               The appellant claims that the Court should:
    decisions in individual cases under Article 190 of the
    EC Treaty: the Court of First Instance found an                Ð allow the appeal,
    infringement of the obligation to state reasons in
    regard to the criteria for determining and calculating
                                                                   Ð set aside the judgment delivered on 9 June 1998 by the
    the amount of the fine, but did not reach the
                                                                       Third Chamber of the Court of First Instance in
    mandatory legal conclusion that the decision was void.
                                                                       Joined Cases T-10/97 and T-11/97, and consequently
    The Court thereby wrongly laid down legal rules for
                                                                       annul the Commission's decision of 8 October 1996,
    the future without applying them in the case before it.
    As it is a matter of the objective application of the
    law, no significance can be attributed to the                      in the alternative:
    Commission's subjective knowledge at the time when
    it adopted its decision,                                       Ð declare that that decision does not have the effect of
                                                                       establishing whether or not the conditions for waiver
Ð error in exercising discretion when interpreting and                 of the right to recover post-clearance duties in
    applying Article 15(2) of Council Regulation No 17:                question were fulfilled, which it is for the national
    the grant of two-thirds reductions in the fine for an              court to decide,
    admission' or one third for a failure to contest' the
    essential allegations is devoid of any legal basis and             in any event
    infringes fundamental rights of defence of the parties
    concerned,
                                                                   Ð order the Commission to pay the costs of the appeal.
in the alternative:
                                                                   Pleas in law and main arguments adduced in support:
Ð when interpreting and applying Article 15(2) of                  The judgment of the Court of First Instance is challenged
    Regulation No 17 in regard to the turnover relevant            by CPL Imperial 2 SpA and Unifrigo Gadus Srl on the
    for calculating the fines the Court included the               following grounds:
    turnover of third party undertakings and thereby erred
    in law,
                                                                   Ð breach of the rights of the defence, since the Court of
                                                                       First Instance found that it was not necessary for the
Ð error of law in applying Article 15(2) of Regulation                 Commission to ascertain whether the case submitted
    No 17, having regard to the absence of effects of price            to it contained all the information necessary for
    collusion on the market,                                           consideration of the case, especially since the parties
                                                                       concerned played absolutely no part in the
Ð error of appraisal and discrimination in arbitrarily                 proceedings,
    rounding up the fine after applying the calculation
    method under Article 15(2) of Regulation No 17.                Ð breach of Article 5(2) of Council Regulation (EEC)
                                                                       No 1697/79 (1) and Article 220(2)(b) of Council
                                                                       Regulation (EEC) No 2913/92 (2), by introducing a
 ---pagebreak--- 26.9.98               EN                  Official Journal of the European Communities                                           C 299/25
    condition not provided for by the definitive list                consequences set out therein take effect even in the
    contained in those provisions,                                   absence of any corresponding provision of national law?
                                                                     (1) OJ L 336, 23.12.1994, p. 213.
Ð breach of the principle that no one is bound to do the
    impossible', in that it held their failure to discharge an
    impossible burden of proof to be decisive,
Ð breach of Article 5(2) of Council Regulation (EEC)
    No 1697/79 and Article 220 of Regulation (EEC)
    No 2913/92, in that it interpreted those provisions as           Reference for a preliminary ruling from the Bundessozial-
    meaning that the customs authorities did not commit              gericht (Federal Social Court) by order of that Court of
    an error' when the undue payment was consistent                 13 May 1998 in the Case of Manfred Sehrer v. Bundes-
    with the declaration made by the exporter, and                   knappschaft (Federal Pension Fund for Miners),
    therefore there was an induced' error,                          intervener: Landesversicherungsanstalt für das Saarland
                                                                           (Regional Insurance Institution for the Saarland)
                                                                                              (Case C-302/98)
Ð breach of the principle of protection of legitimate
    expectations. The Court of First Instance upheld the                                        (98/C 299/39)
    unusual concept of commercial risk' to be borne by
    all traders, although well aware that it is possible for
    the customs authorities to alter their findings,                 Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Bundessozialge-
                                                                     richt (Eighth Chamber) of 13 May 1998, which was
Ð infringement of Articles 30 and 36 of the Treaty, in
                                                                     received at the Court Registry on 3 August 1998, for a
    that, by declaring that a customs' risk existed, it
                                                                     preliminary ruling in the Case of Manfred Sehrer v. Bun-
    upheld the need for a disguised restriction on trade
                                                                     desknappschaft, intervener: Landesversicherungsanstalt für
    between Member States,
                                                                     das Saarland on the following question.
Ð breach of the principle ne bis in idem and of Article 5
                                                                     Do Articles 6 and 48 to 51 of the Treaty establishing the
    of Council Regulation (EEC) No 1697/79 and
                                                                     European Community and Article 3 of Council Regulation
    Article 220 of Regulation (EEC) No 2913/92, in that
                                                                     (EEC) No 1408/71 (1), on the application of social security
    it did not annul the Decision, or even the part of the
                                                                     schemes to employed persons, to self-employed persons
    Decision authorising recovery of duties relating to a
                                                                     and to members of their families moving within the
    customs slip which had already been paid by CPL
                                                                     Community, preclude national rules under which the
    Imperial 2 SpA.
                                                                     whole of a supplementary French pension paid on the
                                                                     basis of a collective agreement is subject to contributions
(1) OJ L 197, 3.8.1979, p. 1.                                        by the pensioner both to the French sickness insurance
(2) OJ L 302, 19.10.1992, p. 1.                                      scheme and to the German sickness insurance scheme?
                                                                     (1) Official Journal, English Special Edition, First Series II, p. 416.
Reference for a preliminary ruling by the Arrondissements-
rechtbank, The Hague in the Case of Parfums Christian
            Dior SA against Tuk Consultancy BV
                                                                     Reference for a preliminary ruling by the Sala de lo Social
                       (Case C-300/98)                               del Tribunal Superior de Justicia de la Comunidad Valen-
                         (98/C 299/38)                               ciana by order of that court of 10 July 1998 in the Case
                                                                     of SIMAP (Sindicato de MeÂdicos de Sanidad de Asistencia
                                                                     PuÂblica) against the Conselleria de Sanidad y Consumo de
                                                                                         la Generalitat Valenciana
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondisse-                                           (Case C-303/98)
mentsrechtbank (District Court), The Hague, of 25 June
                                                                                                (98/C 299/40)
1998, received at the Court Registry on 29 July 1998, for
a preliminary ruling in the Case of Parfums Christian Dior
SA against Tuk Consultancy BV on the following question.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Sala de lo Social
Is Article 50(6) of the Agreement on trade-related aspects           del Tribunal Superior de Justicia de la Comunidad Valen-
of intellectual property rights (1) to be interpreted as             ciana (Chamber for Labour Matters of the High Court of
having direct effect in the sense that the legal                     Justice of the Valencia Community) of 10 July 1998,