CELEX: C1995/208/60
Language: en
Date: 1995-08-12 00:00:00
Title: Action brought on 12 April 1995 by Tsimenta Xalkidos AE against the Commission of the European Communities (Case T-104/95)

12 . 8 . 95         1 EN                Official Journal of the European Communities                                No C 208/27
    EC Treaty ( IV-33.126 and 33.322 — Cement) to the              knowledge — exclusively in their own interests in order,
    extent to which it concerns the applicant,                     inter alia, to divert exports of Greek cement into other
                                                                   Community markets .
— in the alternative, reduce the fine imposed on the
    applicant under the abovementioned decision,                   The applicant also alleges that the Commission used
                                                                   inconsistent criteria in order to determine which of the
                                                                   participants in a meeting of the representative board at
— order the Commission to pay the applicant's costs                which the alleged infringements are said to have been
    including the fees of his appointed lawyers,                   decided upon, were to be deemed to have taken part in the
                                                                   unlawful agreement, and that it determined in an entirely
— make such further provision as may be required by the            arbitrary manner the duration of the infringement alleged
    law.                                                           against ETE.
                                                                   The applicant goes on to allege that the exchange of
Pleas in law and main arguments adduced in support:                information in connection with pricing in the framework of
                                                                   Cembureau was of no commercial utility and was not
In the contested Decision the Commission found that the            capable of influencing and indeed did not influence
applicant which during the relevant period of time                 intra-Community trade .
comprised the totality of Greek undertakings producing
cement, in common with other national associations of              Moreover, the applicant considers that its participation in
cement industries and undertakings producing cement, had           the ECEC is in no way reprehensible and it refutes as
infringed the provisions of Article 85 ( 1 ) of the EC Treaty.     lawfully and factually unfounded the reasoning by which
That infringement consisted in its participation in ( a ) an       the Commission makes allegations against the ECEC solely
agreement whose purpose was to respect domestic markets            and exclusively because its members are at the same time
and to regulate transfers of cement from one country to            members of Cembureau and of the EPC ( European Policy
another, ( b ) agreements for the exchange of information in       Committee ), whilst it considers the criteria for determining
connection with pricing and concerted practices in order to        the date of commencement and termination of the alleged
facilitate the agreement referred to at ( a ) above, and in        infringements by ECEC to be unclear and erroneous .
meetings of the representative board and executive board of
the Cembureau ( European Cement Association ), and .(c ) in        In the applicant's view the Commission has not given
concerted practices in the framework of the ECEC                   evidence of its allegations against the applicant, nor did it
( European Cement Export Committee ) for the purpose of            provide sufficient reasons for its Decision, at the same time,
exchanging information as regards the situation both in the        moreover, it has prevented ETE from obtaining access to the
Community markets and in the markets of non-member                 complete file on the matter, inasmuch as only a part of the
countries with a few to preventing market penetration of           statement of complaints was communicated to ETE.
competitor undertakings in the Community in other
internal markets of the Community. In respect of those             Finally, the applicant maintains that the Commission
infringements the Commission imposed on the applicant a            imposed on it a fine of the same amount as was imposed on
fine in the amount of ECU 100 000 .
                                                                   other associations which took part in much more frequent
                                                                   and more serious infringements, thereby infringing both the
The applicant maintains at the outset that, as moreover            principles of equal treatment and proportionality and the
expressly acknowledged by the Commission, the traditional          provisions of Article 15 ( 2 ) of Regulation No 17.
markets for Greek cement until 1985 were the markets of
the Middle East and North Africa with the consequence that
the participation up until then of ETE in Cembureau cannot
be associated with the agreement to 'respect domestic
markets ' since the members of ETE had no reason to be
present and indeed no interest in the Community markets.
But when, following the collapse of the Arab and North             Action brought on 12 April 1995 by Tsimenta Xalkidos AE
African markets in 1986 , the Greek cement manufacturers             against the Commission of the European Communities
turned to the intra-Community market, the rapid increase in                              ( Case T-104/95 )
sales of Greek cement in Community markets demonstrates                                    ( 95/C 208/60 )
that ETE was the only member of Cembureau to express its
disagreement with the rule on respecting domestic
markets .                                                                         (Language of the case: Greek)
Furthermore , the applicant considers that it is illogical of the  An action against the Commission of the European
Commission to rely on the mere fact of ETE's membership            Communities was brought before the Court of First
of Cembureau in order to assimilate its conduct to that of         Instance of the European Communities on 12 April 1995 by
the other members of Cembureau which are alleged on the            Tsimenta Xalkidos AE, established in Athens , represented
basis of undisclosed documents to have engaged in unlawful         by Panayiotis Bernitsa, of the Athens Bar, with an address
conduct. The applicant maintains that the leading European         for service in Luxembourg at the Chambers of Philippe
industrial concerns in the sector operated within the              Dupont, of Messrs Arendt & Medernach, 8—10 Rue
framework of Cembureau — and always without ETE's                  Mathias Hardt, B. P. 39 , L-2010 Luxembourg.
 ---pagebreak--- No C 208/28           EN                  Official Journal of the European Communities                                      12 . 8 . 95
The applicants claims that the Court should :                        but on the contrary caused it immediate and severe damage,
                                                                     which is demonstrated moreover by the fact that at the
— adjudicate on this application separately from any other           material time when those activities were being undertaken
    associated application against the same Commission               an appreciable fall in the volume of its exports was recorded .
    Decision,                                                        For those reasons the applicant not only did not adhere to
                                                                     the principle of respect for domestic markets but actively
— annul        Commission       Decision       94/815/EC      of
                                                                     worked against it.
    30 November 1994 relating to a proceeding under
    Article 85 of the EC Treaty ( IV-33.126 and 33.322 —
    Cement ) to the extent to which it concerns the                  As regards exchanges of information unlawful under
                                                                     Community law alleged against it, the applicant maintains
    applicant,
                                                                     that the information exchanged as referred to in the
— in the alternative, reduce the fine imposed on the                 Commission's statement of objections was purely of
    applicant under the abovementioned decision,                     statistical interest and was very general in nature; the
                                                                     consideration of that information, rather than information
— order the Commission to pay the applicant's costs                  from other official sources, within Cembureau and other
    including the fees of his appointed lawyers .                    analogous bodies was merely adjudged to be most
                                                                     convenient and economic .
Pleas in law and main arguments adduced in support:
                                                                     Moreover, the applicant refutes any involvement by it in
In the contested Decision the Commission found that the              concerted practices with a view to sharing markets and
applicant company, Tsimenta Xalkidos AE, in common                   corresponding channelling of exports, and emphasizes that
with other undertakings producing cement, had infringed              it cannot be held liable for activities of other companies
the provisions of Article 85 ( 1 ) of the EC Treaty. That            solely because it participated in the EPC and the ECEC .
infringement consisted in its participation in ( a ) an
agreement whose purpose was to respect domestic markets              On those grounds the applicant considers that the contested
and to regulate transfers of cement from one country to              decision must be annulled on the basis of the infringement of
another, ( b ) in a persistent concerted practice within the         essential formal requirements and the absence of a specific
framework of the European Policy Committee ( EPC ) with              and adequate statement of reasons . Moreover, it maintains
regard to the analysis of the situation both on the                  that the Commission misused its powers given that it used
Community markets and on the markets of non-member                   the powers available to it for the imposition of penalties
countries and the exchange of specific information                   against undertakings operating a cartel in order to include
concerning quantities available for export and actual                within their number an undertaking which it acknowledges
exports to non-member countries with a view to preventing            did not participate in the alleged cartel .
market penetration of competitor undertakings in the
Community in other internal markets of the Community. In             As regards the fine imposed on it, the applicant considers
respect of those infringements the Commission imposed on             that penalty to be completely unjustified given that it is
the applicant a fine in the amount of ECU 1 856 000 .                 based neither on acknowledged and proven factual
The applicant maintains at the outset that, in its statement of      circumstances nor on legal considerations adduced by the
objections the Commission neither refers to nor adduces any           Commission in its Decision . Finally, according to the
concrete action by Tsimenta Xalkidos AE constituting an               applicant, the Commission has infringed the principles of
infringement of the competition rules but instead by                  proportionality and equal treatment inasmuch as the
implication imputes to it the allegations made against the            amount of the fine is disproportionate to the seriousness of
other undertakings involved .                                         the infringements alleged against it and which put it on an
                                                                      equal footing with other Greek companies which are alleged
In support of its assertion, the applicant points out that in         to have committed             certain    particularly    serious
the draft of the contested Decision it was not included               infringements .
amongst the companies on whom it was appropriate to
impose fines and that it was included at the last minute
 notwithstanding the fact that in its view no infringement
was constituted on the basis of the factual circumstances or
the legal assessment.
 With particular regard to its imputed participation in the           Action brought on 25 April 1995 by Benjamin Laurence Lay
 Cembureau agreement, concerning respect for domestic                 against the Council of the European Union and the
 markets, the applicant considers the Commission's                            Commission of the European Communities
 reasoning to be illogical when it attributes responsibility to it
                                                                                             ( Case T-107/95 )
 for actions and agreements in respect of which it makes a
 blanket charge against 'Greek producers' or 'European                                         ( 95/C 208/61 )
 cement-manufacturers ', without mentioning any actual
 involvement by Tsimenta Xalkidos AE in those actions and                            (Language of the case: English)
 agreements . The applicant stresses that the activities of
 Cembureau attributed to it , and those of the other bodies
 ( European Task Force, European Cement Export                         An action against the Council of the European Union and
 Committee and others ) not only did not serve its interests,          the Commission of the European Communities was brought