CELEX: C1995/101/36
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 20 February 1995 by Aalborg Portland A/S against the Commission of the European Communities (Case T-44/95)

22 . 4 . 95             EN                Official Journal of the European Communities                                No C 101 / 17
           applicant bears no relation to the facts upon which       Substantive defects
           it relies;
                                                                     The Commission erred in its demarcation of the relevant
       3 , the Commission erred in its determination of the
                                                                     geographical markets; for that reason alone, its findings
           basis on which the fine was to be imposed .               regarding restriction of competition were incorrect.
                                                                     The Commission sought to bracket together all agreements
                                                                     and practices into a 'single and continuing agreement',
Action brought on 17 February 1995 by Heidelberger                   without stating any reasons therefor . In so doing, it
Zement Aktiengesellschaft against the Commission of the              construed — wrongly in law — a network of ostensible
                      European Communities                           connections, and thus of possible imputations.
                          (Case T-42/95 )                            The conduct of other undertakings or associations of
                           ( 95/C 101 /35                            undertakings cannot be imputed to the applicant as regards
                                                                     membership of an association of undertakings .
                 (Language of the case: German)
                                                                     The Commission is unable to prove the existence of any
An action against the Commission of the European                     'agreement on non-transhipment to domestic markets'. The
Communities was brought before the Court of First                    Commission has no evidence to show that the information
Instance of the European Communities on 17 February                  emerging from the meetings between the Head Delegates
1995 by Heidelberger Zement Aktiengesellschaft of                    was passed on to, and acted upon by, the applicant. No
Heidelberg ( Federal Republic of Germany), represented by            evidence has been adduced to show that the duration of any
Rainer Bechtold, Rechtsanwalt, Stuttgart, and Hans-Jorg              agreement extended beyond 10 June 1985 .
Niemeyer, Rechtsanwalt, Brussels, with an address for
service in Luxembourg at the Chambers of Loesch &                    Nor is the Commission able to prove the existence of any
Wolter, 11 Rue Goethe .                                              agreement or concerted practice restricting cross-border
                                                                     trade between Germany and France.
The applicant claims that the Court should :
— annul, pursuant to the second paragraph of Articles 173            The Commission's allegation regarding participation in
     and 174 of the EC Treaty, the Decision of the                   agreements for the setting-up of the European Task Force
     Commission of 30 November 1994 ( Cases IV/33.126                ( ETF ) and a joint trading company, and in concerted
     and 33.322 — Cement), in so far as it concerns the              practices designed to withdraw Calcestruzzi as a customer
     applicant,                                                      from the Greek producers, are based solely on the presence
                                                                     of Heidelberger Zement at a meeting in Rome . Nothing
— in the alternative, pursuant to Article 17 of Regulation           impermissible was discussed or predetermined at that
     No 17 of 6 February 1962, vary Article 9 of the decision,       meeting. The Commission is unable to adduce any other
     in so far as it concerns the applicant, so as to cancel or      evidence .
     considerably reduce the fine imposed on the
     applicant,                                                      The Commission has not given reasons for the size of the
                                                                     fine imposed on the applicant. Furthermore, it has failed to
— order the Commission, pursuant to Article 87 ( 2 ) of the          fulfil its obligation to determine the amount of fines on an
     Rules of Procedure of the Court of First Instance, to pay       individual basis, in that it failed to take into consideration
     the costs of the proceedings necessarily incurred by the        the individual conduct of Heidelberger Zement and its
     applicant.                                                      position within the alleged cartel . Consequently, the fine has
                                                                     been invalidly imposed .
Pleas in law and main arguments adduced in support:
Procedural defects
The applicant objects that the statement of objections
communicated to it was incomplete and unclear . It was
expressed in such blanket terms ('the European cement
producers ') that the applicant was unable to identify               Action brought on 20 February 1995 by Aalborg
specifically which aspects of its conduct were the subject of        Portland A/S against the Commission of the European
                                                                                                Communities
complaint.
                                                                                             ( Case T-44/95 )
The grant of access to the documentation was dealt with in a
                                                                                               ( 95/C 101 /36 )
discriminatory way. It was limited merely to part of the
documentation, without adequate reasons being given.
                                                                                     (Language of tbe case: Danish)
From the outset, the periods prescribed for replying to the
statement of objections were too short.
                                                                     An action against the Commission of the European
At the oral hearing, the applicant's right to participate, and       Communities was brought before the Court of First
to an even greater extent its right to make oral statements,         Instance of the European Communities on 20 February
was restricted .                                                     1995 by Aalborg Portland A/S, Aalborg (Denmark),
 ---pagebreak--- No C 101 /18          EN                         Official Journal of the European Communities                                       22 . 4 . 95
represented by Karen Dyekj aer-Hansen, of the Copenhagen                     purpose in this was to prevent incursions by the other
Bar, with an address for service in Luxembourg at the                        members on the applicant's own market.
Chambers of Aloyse May, 31 Grand-Rue.
                                                                             The applicant also argues that the Decision breaches
                                                                             essential procedural requirements which must be complied
The applicant claims that the Court should:                                  with when a fine is imposed under Regulation No 17/62 of
                                                                             the Council and that it is also contrary to Article 190 of the
1 , annul Articles 1 , 2, 4 ( 1 ) and ( 3 ) (a ), 5 , 8 , 9 , 11 and 12 of   EC Treaty in so far as it is inadequately reasoned.
     the Commission Decision of 30 November 1994
     relating to a proceeding under Article 85 of the EC
     Treaty (IV/33.126 and 33.322 — Cement) in so far as
     those articles relate to the applicant;
                                                                             Action brought on 20 February 1995 by Alsen-Breitenburg
2, in the alternative, annul the fine imposed on the                         Zement- und Kalkwerke GmbH against the Commission of
     applicant;                                                                                the European Communities
                                                                                                      ( Case T-45/95 )
3 , in the further alternative, reduce the fine imposed on the
     applicant;                                                                                         ( 95/C 101/37)
4, order the Commission to pay the applicant's costs.                                        (Language of the case: German)
                                                                             An action against the Commission of the European
Pleas in law and main arguments adduced in support:                          Communities was brought before the Court of First
                                                                             Instance of the European Communities on 20 February
In support of its pleas in law, the applicant submits that it                1995 by Alsen-Breitenburg Zement- und Kalkwerke GmbH
has not infringed Article 85 of the EC Treaty. The Decision                  of Hamburg ( Federal Republic of Germany ), represented
is thus at variance with that provision and with Articles 3                  by Karlheinz Moosecker and Martin Klusmann,
and 15 of Regulation No 17/62 of the Council in so far as                    Rechtsanwàlte, Diisseldorf, with an address for service in
it involves an incorrect application of law and draws                        Luxembourg at the Chambers of Bonn & Schmitt, 62
inaccurate conclusions from the evidence. The applicant                      Avenue Guillaume .
submits in this regard that it did not participate in an
agreement designed to ensure non-transhipment to home                      . The applicant claims that the Court should:
markets and to regulate cement transfers from one country
to another.                                                                  1 , annul in its entirety the decision of the Commission of
                                                                                   30 November 1994 ( Cases IV/33.126 and 33.322 —
The applicant acknowledges that it participated in three                           Cement), served on the applicant on 13 December 1994
meetings during the period 1983 to 1984 but states that no                         and 3 February 1995 , in so far as it concerns the
agreement was concluded at those meetings . Nor can it be                          applicant;
regarded as proved that the applicant exchanged market                             in the alternative, reduce the fine imposed on the
information at those meetings. Even if the applicant's silent                      applicant to a reasonable sum corresponding to the real
presence were to be regarded as blameworthy, that                                  significance of the influence on competition forming the
participation is one single event which took place long                            subject-matter of the proceeding, the period of time to
before the limitation period laid down in Regulation ( EEC )                       which the objections regarding the ECEC relate and the
No 2988/74 and before the applicant company was                                    involvement of the applicant in the matter;
formed .
                                                                             2 , order the defendant to pay the costs .
The applicant routinely sent non-contemporaneous
information on prices approved by the Danish Monopoly                        Pleas in law and main arguments adduced in support:
Control Authorities to Cembureau — The European
Cement Association and obtained processed information                        The applicant complains from a procedural standpoint that
from it. This is normal practice within the sector and the                   the defendant:
information was not submitted or received with the
intention or request that it should affect the conduct of other              (a ) permanently impaired the applicant's ability to
cement producers . In particular, there is no basis for the                         exonerate itself, by failing to effect complete service of
assumption that this information bore any relation to the                           the statement of objections and by failing to formulate
meetings referred to in Article 1 of the Decision.                                  the same with adequate precision ( first head of
                                                                                    claim );
It cannot be regarded as established that the applicant took                 ( b ) seriously impeded the applicant's defence during the
part in an agreement to establish a European Task Force or                          administrative procedure and following the issue of the
that it participated in any arrangement connected with the                          decision by allowing only limited inspection of the
Italian construction company Calcestruzzi.                                          documentation in the file (second head of claim );
The applicant does not deny having been a member of the                      (c ) rendered it more difficult to reply to the statement of
European Cement Export Committee but does deny that its                             objections within the prescribed period by failing to