CELEX: C1998/072/59
Language: en
Date: 1998-03-07 00:00:00
Title: Action brought on 19 January 1998 by Impregilo SpA and Others against the Commission of the European Communities (Case T-19/98)

C 72/28             EN                    Official Journal of the European Communities                                     7.3.98
Ð a breach of the obligation to state reasons, inasmuch              The complaint alleged conduct which amounted to serious
    as in the contested refusal the Council merely                   infringements of the rules on competition of the EC Treaty
    reproduced the text of Council Decision 97/731/EC,               committed during the construction of the building for the
    without relating it to a specific factual premise.               Council of the European Union in Brussels. The nature
                                                                     and effect of those infringements was to distort
                                                                     competition to the detriment of undertakings from other
                                                                     Member States and to dissuade in the long term non-
                                                                     Belgian undertakings from taking part in Belgian public
                                                                     procurement contracts. Essentially, that complaint was
Action brought on 19 January 1998 by Impregilo SpA and               directed against an agreement, arrangement or concerted
Others against the Commission of the European                        practice between a large number of the major Belgian
                        Communities                                  construction and public works undertakings which
                       (Case T-19/98)                                enabled them to penalise' the members of CDK, one of
                        (98/C 72/59)                                 which is an Italian undertaking and another German,
                                                                     which dared' to attempt to penetrate the Belgian
               (Language of the case: French)                        construction and public works market by submitting
                                                                     tenders for the construction of the Council's new
An action against the Commission of the European                     buildings.
Communities was brought before the Court of First
Instance of the European Communities on 19 January
1998 by Impregilo SpA, established in Milan (Italy),                 Such conduct was made possible largely by the action of
Dyckerhoff & Widmann AG (Dywidad), established in                    the Belgian State itself. By conferring on the EGC
Ascheim (Federal Republic of Germany) and Entreprises                consortium an economically and legally dominant position
Koeckelberg SA, established in Charleroi (Belgium),                  with respect to its competitor CDK, in particular by
represented by Chantal Bonnard, of the Paris Bar, with an            granting it excessive powers and an unprecedented
address for service in Luxembourg at the Chambers of                 plurality of roles, the Belgian State infringed the
Aloyse May, 31 Grand'rue.                                            Community competition rules and created a situation
                                                                     which inevitably led to manifest, serious and repeated
The applicants claim that the Court should:                          abuses.
Ð annul the decision of the Commission of 13 November
    1997 whereby the latter rejected the applicants'                 The Commission rejected that complaint by way of the
    requests that the infringements of Articles 5, 85, 86            contested decision.
    and 90 of the EC Treaty committed by Belgian
    construction undertakings and the Belgian State during           The applicants plead infringement of Articles 5, 85, 86
    the construction of the new Council of Ministers                 and 90 of the EC Treaty.
    building be penalised,
Ð order the Commission to pay the entire costs incurred              By failing to carry out an investigation, despite all the
    by the applicants in the present action for annulment.           circumstantial and factual evidence in its possession
                                                                     pointing to the existence of a collective dominant position,
Pleas in law and main arguments adduced in support:
                                                                     the Commission has infringed Article 86 and failed to
The applicants, three construction undertakings, are                 fulfil its obligations with regard to the application of the
members of CDK', a consortium governed by Belgian                   competition rules.
law, set up in order to participate in the construction of
the new building complex intended to accommodate the                 The granting of exclusive and special powers to EGC by
Council's staff. EGC' is a consortium governed by Belgian           the Belgian State is a breach of the Belgian State's
law, under which are grouped the members of four                     obligations flowing from 90 of the EC Treaty.
consortia consisting mainly of Belgian contractors, formed
for the purpose of constructing the Council's buildings.
The members of the EGC are among the major                           Moreover, the contested decision is contrary to Article 85
construction companies in Belgium.                                   of the EC Treaty inasmuch as it considers that the setting
                                                                     up of EGC is not incompatible with that provision. The
On 28 February 1996 the members of CDK lodged a                      rejection of the complaint on the ground that the
complaint with the defendant against 16 Belgian                      applicants have not suffered any damage as a result of the
undertakings in the construction industry which form part            consortium with regard to some lots is likewise contrary
of the EGC consortium and against the Belgian State.                 to Article 85.