CELEX: C1995/101/39
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 20 February 1995 by Terres Rouges Consultant and others against the Commission of the European Communities (Case T-47/95)

22. 4. 95            [ EN                 Official Journal of the European Communities                               No C 101 / 19
      provide translations of documentary evidence written           Action brought on 20 February 1995 by Nordcement
      in foreign languages, thereby frustrating the submission       Aktiengesellschaft against the Commission of the European
      by the applicant of a comprehensive response (third                                      Communities
      head of claim);                                                                        (Case T-46/95 )
( d ) rendered it impossible, in overall terms, for the                                       ( 95/C 101/38 )
      applicant to submit a defence commensurate with the
      scope of the matters covered by the proceeding, by                            (Language of the case: German)
      prescribing unreasonably short periods for the delivery
      of its response and for inspection of the file ( fourth head
      of claim );                                                    An action against the Commission of the European
                                                                     Communities was brought before the Court of First
( e ) provided a statement of reasons for he decision which          Instance of the European Communities on 20 February
      was inadequate and contradictory, particularly as              1995 by Nordcement Aktiengesellschaft of Hanover,
      regards discrepancies between the operative part of the        represented by Karlheinz Moosecker and Martin
      decision and the reasons therefor, as well as an absence       Klusmann, Rechtsanwâlte, Diisseldorf, with an address for
      of reasons in support of individual objections ( fifth         service in Luxembourg at the Chambers of Bonn & Schmitt,
      head of claim), and — consequently —                           62 Avenue Guillaume .
( f) made findings of fault and determined the fine to be
      imposed in a manner which, from a formal standpoint            The applicant claims that the Court should :
      alone, fell far short of the requirements laid down by
      Article 190 of the EC Treaty regarding the giving              1 . annul in its entirety the Decision of the Commission of
      of reasons for individual decisions ( sixth head of                 30 November 1994 ( Cases IV/33.126 and 33.322 —
      claim).                                                             Cement ), served on the applicant on 13 December 1994
                                                                          and 3 February 1995 , in so far as it concerns the
By reason of those procedural infringements, the                          applicant,
Commission breached the principles of equality of arms in
the proceeding, of entitlement to a fair hearing and of                   in the alternative, reduce the fine imposed on the
equitable procedure and equality of treatment.                            applicant to a reasonable sum corresponding to the real
Consequently, the decision was reached in an unlawful                     significance of the influence on competition forming the
manner and should thus be annulled .                                      subject-matter of the proceeding, the period of time to
                                                                          which the objections regarding the ECEC relate and the
As regards the substance of the matter, the applicant                     involvement of the applicant in the matter;
complains that the Commission:
(a ) based its legal subsumptions on incorrect and unproven          2 , order the defendant to pay the costs .
      suppositions, in that it investigated the actual
      circumstances in the cement markets in a fragmentary           Pleas in law and main arguments adduced in support:
      manner and drew erroneous and arbitrary conclusions
      from the facts investigated ( seventh head of claim );         The pleas in law and main arguments are the same as those
                                                                     in Case T-45/95 Alsen-Breitenburg Zement- und Kalkwerke
( b ) with particular regard to the ECEC, failed to recognize,       GmbH v . Commission .
      from the standpoint of Article 85 ( 1 ) of the EC Treaty,
      the absence of elements constituting an infringement in
      relation to that organization and its modus operandi
      ( eighth head of claim);
(c) assumed the existence of links between the ECEC and
      the EPC, organizations which were the subject of               Action brought on 20 February 1995 by Terres Rouges
      complaints, whereas no such links in fact existed ( ninth      Consultant and others against the Commission of the
      head of claim);                                                                   European Communities
( d ) in assuming the existence of a single continuing                                       (Case T-47/95 )
      infringement, bracketed together, in a grossly unlawful                                 ( 95/C 101/39 )
      manner, different sets of facts, and conjectured
      participation in the alleged Cembureau agreement
      (tenth head of claim );
                                                                                     (Language of the case: French)
(e ) without due authority, issued directions in Article 8           An action against the Commission of the European
      of the decision which were inadequately defined and            Communities was brought before the Court of First
      which were impermissible regarding the future                  Instance of the European Communities on 20 February
      exchange of information (eleventh head of claim).              1 995 by Terres Rouges Consultant, the head office of which
Consequently, the decision constitutes an infringement of            is in Paris, Cobana Import, the head office of which is at
                                                                     Rungis ( France), and SIPEV NV, the head office of which is
the Treaty and of higher-ranking rules of Community law,
and should for that reason be annulled .                             in Antwerp ( Belgium ), represented by Michel Aurillac, of
                                                                     the Paris Bar, with an address for service in Luxembourg at
                                                                     the Chambers of Charles Duro, 6 Rue Heine.
 ---pagebreak--- No C 101/20         HEN                   Official Journal of the European Communities                                              22 . 4 . 95
The applicant claims that the Court should:                          Lastly, the contested Regulation is in breach of the Lomé
                                                                     Convention, inasmuch as neither the purpose nor the effect
— annul the contested regulation, with all the legal                 of Protocol 5 to the Convention and the preamble thereto
      consequences flowing therefrom, and order the                  is to place non-traditional bananas in a less favourable
      Commission to pay the costs.                                   position than their Latin American competitors.
Pleas in law and main arguments adduced in support:
The applicants, three companies handling the importation
and marketing of 70% of the banana production of the
Côte d'Ivoire, contest Commission Regulation (EC )
No 3224/94, inasmuch as it disregards the provisions of the          Action brought on 20 February 1995 by the Bundesverband
basic regulation in the banana sector.                               der Deutschen Zementindustrie eV against the Commission
                                                                                      of the European Communities
Following the adoption by the Council of Regulation ( EEC )                                   (Case T-48/95 )
No 404/93 on the common organization of the market in                                          ( 95/C 101/40 )
bananas, a number of Latin American banana-producing
countries applied, pursuant to Article XXIII ( 1 ) and ( 2 ) of
GATT, for the setting up of a panel, which found that the                            (Language of the case: German)
Community rules in the matter were incompatible in several
respects with GATT, in particular those relating to specific         An action against the Commission of the European
duties paid on the importation of bananas, preferential              Communities was brought before the Court of First
rights granted by the EEC to ACP countries in respect of             Instance of the European Communities on 20 February
bananas and the grant of import licences allowing access to          1995 by the Bundesverband der Deutschen Zementindustrie
imports within the framework of the tariff quota provided            eV of Cologne (Federal Republic of Germany), represented
for .                                                                by Jochen Burrichter, Rechtsanwalt, Dusseldorf, with an
                                                                     address for service in Luxembourg at the Chambers of
In those circumstances, the Commission negotiated with               Aloyse May, 31 Grand-Rue.
Costa Rica, Colombia, Nicaragua and Venezuela a
Framework Agreement on Bananas which was initialled in
Brussels and annexed to the Marrakesh General Agreement              The applicant claims that the Court should:
on the WTO . That Framework Agreement had the effect, in
particular, of modifying the rules governing the global tariff       — annul Articles 1,2, 3 ( 3 ), 4 ( 1 ), ( 2 ) and ( 3 ) (a ) and 9 ( 5 ) of
quota . The operative part of the contested regulation sets              the Decision of the Commission of 30 November 1994
out, for all practical purposes, the provisions of the                   ( Cases IV/33.126 and 33.322 — Cement),
Framework Agreement.
                                                                     — order the Commission to pay the costs.
The applicant companies plead, first, an infringement of
essential procedural requirements, in that the contested             Pleas in law and main arguments adduced in support:
regulation was adopted, contrary to the provisions of
Article 27 of the basic Regulation, without the Management             L The applicant pleads infringement of the rules
Committee for Bananas having delivered an opinion within                   governing administrative procedure .
the time allowed by its Chairman.
Moreover, the contested Regulation, which is deemed,                       1 . Substantial parts of the statement of objections
within the legislative hierarchy, to constitute a Regulation                   forming an inseparable whole, namely the so-called
implementing the basic Regulation in the banana sector,                        'national' parts, were not communicated to the
disregards the provisions of that basic Regulation.                            applicant.
According to the applicants, Article 1 of the contested
Regulation, which divides the tariff quota up into specific                2 . It was not clear from the statement of objections
quotas and creates a quota of 90 000 tonnes in favour of the                   which matters were objected to .
Dominican Republic and other ACP States concerning
traditional quantities, and Article 2, which provides, within              3 . The Commission did not give the applicant full
the limits of those quotas, for the release for free circulation               access to the file .
of bananas originating in various Latin American countries,
including bananas dispatched before 20 December 1994,                      4. The Commission changed the factual and legal
are contrary to Regulation (EEC ) No 404/93 , which                            nature of the objections made against the applicant
contains no such provisions .                                                  without giving it a fresh opportunity to submit its
                                                                               comments .
If the contested Regulation purports to be based on the
agreements concluded in the course of the Uruguay Round                    5 . The Commission failed to fulfil its obligation to
of multilateral trade negotiations, a further Council                          provide the Advisory Committee on Restrictive
regulation should have been adopted to take account of that                    Practices and Dominant Positions with the full text
international commitment, in so far as the Framework                           of its proposed decision, containing details of the
Agreement derogates from a Council regulation.                                 individual fines .