CELEX: C1995/119/55
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 8 March 1995 by British Railways Board against the Commission of the European Communities (Case T-80/95)

13 . 5 . 95           | EN                  Official Journal of the European Communities                                 No C 119/29
     2 . Infringement of the rights of the defence: the                         ( f) the Decision does not comply with the
          applicant submits that the Commission failed to                             legislative framework ensuring the economic
          respect its right of access to the file, its right to a                     viability of trans-European networks;
          hearing and its right to the observance of time
          limits .                                                              (g) the Decision takes no account of the objective
                                                                                      necessity of technical cooperation.
     3 . Breach of the principles of the proper                             3 . Misuse of power: the applicant argues that the
          administration of the competition rules: the                          Commission may, on the basis of Article 8 of
          applicant considers that by attaching to its decision                 Regulation No 17 and Article 13 of Regulation
          to grant exemption conditions which disregard                         (EEC )    No      1017/68 ,  attach  conditions    and
          freedom of contract and seriously harm the                            obligations to a decision to grant exemption, but
          economic balance of the contract, the Commission                      that its power in this field is discretionary, not
          failed to respect the principle of minimum                            unlimited . It considers that the Commission exceeds
          intervention . It also submits that the Commission
                                                                                its powers if it upsets the economic balance of a
          was wrong to give retroactive effect to the                           contract and the market conditions within which it
          conditions of the exemption; such retroactive effects                 is to be applied so substantially that a well-informed
          conflict with the Community provisions according                      trader would not have concluded it in that way of his
          to which an exemption can be revoked only in                          own volition. That is the case with the usage
          clearly defined circumstances, circumstances which                    contract .
          are not present in this case .
                                                                            4. Breach of Article 190 of the EC Treaty: the applicant
II. Breach of substantive provisions of Community law                           submits that the Decision does not comply with the
                                                                                requirements of the case-law with respect to
                                                                                statements of reasons for decisions having adverse
     1 . Breach of the principle of protection of legitimate                    effect.
          expectations: the applicant submits that traders are
          entitled to require the public authorities to take
          account of the good faith in which they took
          decisions in the previous legal context which
          continue to have effect in a new legal context; those
          decisions     are   entitled  to   some     transitional
                                                                       Action brought on 8 March 1995 by British Railways Board
          protection, the nature and duration of which must               against the Commission of the European Communities
          take account of the actual possibilities for the
          traders concerned to adapt their decisions to the                                      (Case T-80/95 )
          new legal context. That was not done by the                                             ( 95/C 119/55 )
          Commission in the present case.
                                                                                       (Language of the case: English)
     2. The contested Decision was adopted in breach of
          Article 85 ( 1 ) of the EC Treaty, Article 2 of              An action against the Commission of the European
          Regulation ( EEC ) No 1017/68 and Article 53 ( 1 ) of        Communities was brought before the Court of First
          the EEA Agreement, for the following reasons:                Instance of the European Communities on 8 March 1995 by
                                                                       British Railways Board, represented by Mr Thomas Sharpe
          (a ) the Decisions contains a delimitation of the            and Mr Alexandre R. M. Nourry, with an address for service
                reference markets which is incorrect in fact and       in Luxembourg at the Chambers of Maître Jean Hoss,
                law;                                                   Elvinger & Hoss, Avocats à la Cour, 15 Côte d'Eich, BP 425 ,
                                                                       1450 Luxembourg.
          ( b ) the object of the usage contract is not a sharing      The applicant claims that the Court should:
                of markets within the meaning of Article 85 ( 1 )
                of the EC Treaty, Article 2 of Regulation ( EEC )      — annul Commission Decision 94/894/EC of 13 December
                No 1017/68 and Article 53 ( 1 ) of the EEA                  1994 (*) in its entirety, or
                Agreement;
                                                                       — alternatively, annul Article 2 .A of the Decision, and
          (c) the effect of the contract is not a sharing
                of markets within the meaning of those                 — order the Commission to pay the applicant's costs .
                provisions;
                                                                       Pleas in law and main arguments adduced in support:
          ( d ) the Decision takes no account of the weight of
                intermodal competition;                                The applicant challenges the legality of the Decision on the
                                                                       following grounds:
          (e ) the Decision takes no account of the contract's         1 . The Decision is based on an incorrect and incomplete
                pro-competitive object and effects;                         assessment of the facts and vitiated by manifest error in
 ---pagebreak--- No C 119/30        [ EN |                 Official Journal of the European Communities                                13 . 5 . 95
    law in that the Commission unlawfully refused to grant               — denied the applicant the right to be heard and acted
    a declaration that there were no grounds for the                         in breach of the principle of good administration.
    application of the provisions of Article 2 of Regulation
    (EEC ) No 1017/68 and/or Article 85 ( 1 ) of the EC              (!) OJ No L 354, 31 . 12 . 1994, p. 66 .
    Treaty and Article 53 ( 1 ) of the EEA Agreement. The
    Commission therefore has no jurisdiction under
    Article 5 of the Regulation and/or Article 85 ( 3 ) of the
    EC Treaty and Article 53 ( 3 ) of the EEA Agreement to                Removal from the register of Case T-518/93 i 1 )
    impose the conditions .                                                                    95/C 119/56
    Alternatively,                                                                  (Language of the case: French)
                                                                     By order of 28 March 1995 the President of the Second
2. The Decision is founded on an incorrect and incomplete            Chamber ( Extended Composition) of the Court of First
    assessment of the facts, vitiated by manifest error of law       Instance of the European Communities ordered the removal
    in that the conditions are unnecessary for the purpose of        from the register of Case T-518/93 : Anton Durbeck GmbH
    rendering inapplicable Article 2 of the Regulation               v. Council of the European Union and Commission of the
    and/or Article 85 ( 1 ) of the EC Treaty and Article 53 ( 1 )    European Communities .
    of the EEA Agreement.
                                                                     (M OJ No C 188 , 10 . 7. 1993 .
3 . The conditions are not necessary and are
    disproportionate to any alleged restrictions on
    competition. The conditions are also uncertain in their
    application and unduly burdensome. Consequently, the                  Removal from the register of Case T-282/94 ( ] )
    protection of the imposition of the conditions offends                                   ( 95/C 119/57
    against the principles of Community law of the
    protection of legitimate expectations, proportionality                          (Language of the case: Dutch)
    and legal certainty.
                                                                     By order of 17 March 1995 the President of the Third
                                                                     Chamber Court of First Instance of the European
4 . In imposing the conditions, the Commission has                   Communities ordered the removal from the register of
    exceeded its competence and misused its powers by                Case T-282/94: La Société en Commandite Jurope v.
    extending to the Railways, in substance, the obligation          Commission of the European Communities .
    placed by Directive 91/440/EEC upon Eurotunnel as the
    infrastructure manager. The Commission has also                  (M OJ No C 304, 29 . 10 . 1994 .
    exercised its powers under Article 5 of the Regulation
    and/or Article 85 ( 3 ) of the EC Treaty and Article 53 ( 3 )
    of the EEA Agreement to matters governed by, and in a
    manner inconsistent with, Directive 91 /440/EEC. The                  Removal from the register of Case T-359/94 ( )
    imposition of the conditions is therefore both                                           ( 95/C 119/58 )
    discriminatory and unlawful.
                                                                                   (Language of the case: German)
5 . The Commission has acted in breach of essential
    procedural requirements and also in breach of                    By order of 22 March 1995 the President of the Fourth
    Article 190 of the EC Treaty and the principle of                Chamber ( Extended Composition) of the Court of First
    Community law of natural justice, thereby vitiating the          Instance of the European Communities ordered the removal
    Decision, in that the Commission:                                from the register of Case T-359/94: Schmidt + Clemens
                                                                     GmbH + Co ., Edelstahlwerke Kaiserau v. Commission of
                                                                     the European Communities.
    — failed to adduce evidence and to provide adequate
        reasons for the Decision,                                    (!) OJ No C 370, 24 . 12 . 1994 .