CELEX: C1995/054/16
Language: en
Date: 1995-03-04 00:00:00
Title: Action brought on 16 January 1995 by the Kingdom of Belgium against the Commission of the European Communities (Case C-9/95)

4 . 3 . 95            I EN                 Official Journal of the European Communities                                  No C 54/9
Appeal brought on 13 January 1995 by New Holland Ford                     concerted practice to be incompatible with
Ltd against the judgment delivered on 27 October 1994 by                  Article 85 ( 1 ), in particular the requirement of an
the Second Chamber of the Court of First Instance of the                  anti-competitive purpose or effect.
European Communities in case T-34/92 between Fiatagri
UK Ltd and New Holland Ford Ltd and the Commission of
                   the European Communities                           2. Misapplication of Article 85 (2 ) of the Treaty and of the
                                                                          principle established in Consten and Grundig
                         ( Case C-8/95 P
                            ( 95/C 54/15                                  The Court of First Instance denied the applicability to
                                                                          the present case of the principle formulated in the
                                                                          Consten and Grundig judgment, according to which:
An appeal against the judgment delivered on 27 October
                                                                           'the provision in Article 85 ( 2 ) that the agreements
1994 by the Second Chamber of the Court of First Instance ,
                                                                          prohibited pursuant to Article 85 shall be automatically
of the European Communities in case T-34/92 between
                                                                          void applies only to those parts of the agreement which
Fiatagri UK Ltd and New Holland Ford Ltd and the
                                                                           are subject to the prohibition, or to the agreement as a
Commission of the European Communities, was brought                       whole if those parts do not appear to be severable from
before the Court ofJustice of the European Communities on                 the agreement itself f 1 )..
13 January 1995 by New Holland Ford Ltd, of Cranes Farm
Road, Basildon, Essex (United Kingdom), represented by
Mario Siragusa of the Rome Bar and Giuseppe                               The Court of First Instance erred in denying the
Scassellati-Sforzolini of the Bologna Bar, both of Cleary,                 applicability of an EC law principle which would likely
                                                                           have led it to conclude that the Decision had to be
Gottlieb, Steen and Hamilton, Brussels, with an address for
                                                                           annulled.
service in Luxembourg at the Chambers of Elvinger, Hoss
and Prussen, 15 , Cote d'Eich.
                                                                      3 . Misapplication of Article 85 ( 3 )
The Appellant claims that the Court should:
                                                                           The Court of First Instance upheld the Commission's
                                                                           finding on Article 85 ( 1 ) and denied that the exchange,
— declare the appeal timely and admissible,                                or at least the data system, merited an individual
                                                                           exemption. While permitting the Commission not to
— annul the Judgment in its entirety,                                      prove actual effects on competition under Article 85 ( 1 ),
                                                                           it required the applicants to prove that competition
— annul the Decision in its entirety or, alternatively,                    would actually have developed differently in the absence
       remand the case to the Court of First Instance, and                 of the exchange, in order to show that information
                                                                           under the exchange and the data system is indispensable
— condemn the Commission to pay the Appellant's legal                      for the purpose of Article 85 ( 3 ). The absence of
       fees and expenses.                                                  demonstrable dramatic changes in the market after the
                                                                           exchange was suspended in 1988 prove that the
                                                                           Commission wrongly presumed that Article 85 ( 1 )
 Pleas in law and main arguments:                                          should apply to the exchange.
The Appellant submits that the judgment of the Court of               (') Judgment of the Court of Justice in Joined Cases 56/64 and
 First Instance is defective and should be annulled because of:           58/64 ( 1966 ) ECR p. 292, 344 .
 ( a ) breaches of procedural rules adversely affecting the
 interests of the appellants; and ( b) the misapplication of
 Article 85 of the Treaty.
 Procedural errors
                                                                      Action brought on 16 January 1995 by the Kingdom of
 The Court of First Instance failed to give sufficient reasons        Belgium against the Commission of the European
 on decisive points of the judgment and failed to address all                                  Communities
 of the material factual errors in the Decision and their
                                                                                                Case C-9/95 )
 impact on the legality of the Decision.
                                                                                                 95/C 54/16
 Substantive errors
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of the
 1 . Misapplication of Article 85 ( 1 )                               European Communities on 16 January 1995 by the
                                                                      Kingdom of Belgium, represented by J. Devadder, Head of
       The Court of First Instance misapplied Article 85 ( 1 ) of     Department at the Ministry of Foreign Affairs, Foreign
       the Treaty in two significant ways: ( a ) it wrongly defined   Trade and Cooperation with Developing Countries, with an
        and described the relevant market; and ( b ) it wrongly       address for service in Luxembourg at the Belgian Embassy, 4
        interpreted the requirements for an agreement or              Rue des Girondins .
 ---pagebreak---  No C 54/10         I EN I                Official Journal of the European Communities                                      4 . 3 . 95
The applicant asks the Court to annul Commission                     The Appellant claims that the Court should:
Regulation (EEC) No 2791/94 of 16 November 1994 on the
exceptional allocation of a quantity additional to the tariff         1 . annul the order; and
 quota for imports of bananas in 1994 as a result of tropical
 storm Debbie ( l ) and order the Commission to pay the              2 . declare the action admissible or, in the alternative, join
costs .                                                                   the question of admissibility to the substance and refer
                                                                          the case back to the Court of First Instance, continuing
                                                                          proceedings from the stage at which they were stayed,-
Pleas in law and main arguments                                           for a decision on the admissiblity of the applications to
                                                                          intervene .
Insufficient legal basis: Article 30 of Council Regulation
 (EEC) No 404/93 on the common organization of the
market in bananas permits the adoption of specific                   Pleas in law and main arguments
transitional measures solely in order to assist the transition
                                                                     The true nature of Council Directive 93/118/EC of
to the single market from the arrangements existing prior to
its entry into force; it cannot serve as the legal basis for the     22 December 1993 amending Directive 85/73/EEC on the
contested Regulation. In the first place, tropical storm             financing of health inspections and controls of fresh meat
Debbie has nothing to do with problems relating to the               and poultrymeat (*), hereinafter referred to as 'the contested
transition. Secondly, it was certainly not the Council's             directive', is that of a decision. The margin of discretion
intention to create by means of Article 30 the possibility of        enjoyed by the Member States under the contested
adopting measures which coincide with previously existing            Directive, in so far as it amends Directive 85/73/EEC, is
national measures. The purpose of the latter was principally,        merely token and virtually without effect. A correct and
and sometimes exclusively, to protect national markets. The          comprehensive reading of the directive reveals that the use of
introduction of the single market is intended to remove such         the verb 'may' is merely rhetorical. The contested directive is
                                                                     of direct and individual concern to the members of Asocarne
protective measures. The Commission cannot, therefore,
use Article 30 as a basis for establishing measures similar to       who have a veterinary registration number and were liable
those which existed prior to the single market.                      for fees before its entry into force, so that Asocarne has
                                                                     standing to bring this action inasmuch as the contested
                                                                     directive is of direct and individual concern to its
The allocation of the additional quantity is incompatible            members .
with Article 19 ( 1 ) of Regulation (EEC ) No 404/93 :
Article 1 ( 1 ) of the contested regulation allocates the
additional quantity solely among operators affected by the           Contrary to the view of the Court of First Instance, in the
storm, although Article 19 ( 1 ) of Regulation ( EEC )              case of directives, the judicial protection of individuals is not
No 404/93 makes no provision for derogating from the                 duly and sufficiently assured by the national courts. The
method of allocation it lays down.                                   administration of justice is necessarily subject to delay.
                                                                    Moreover, some Spanish courts have demonstrated a certain
                                                                    reluctance to make references for preliminary rulings under
(!) OJ No L 296 , 17. 11 . 1990, p . 33 .                           Article 177 of the EEC Treaty.
                                                                     (M OJ No L 340, 31 . 12 . 1993, p. 15 .
Appeal brought on 4 January 1995 by Asociacion Espanola
de Empresas de la Carne (Asocarne) against the order made
on 20 October 1994 by the First Chamber of the Court of             Action brought on 13 January 1995 by the Commission of
First Instance of the European Communities in Case                  the European Communities against the Kingdom of
T-99/94 between Asociacion Espanola de Empresas de la                                            Belgium
   Carne (Asocarne) and Council of the European Union                                        (Case C-ll/95 )
                       (Case C-10/95 P)                                                       ( 95/C 54/18 )
                          (95/C 54/17)
                                                                    An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities,
An appeal against the order made on 20 October 1994 by
the First Chamber of the Court of First Instance of the             represented by Pieter Van Nuffel, of its Legal Service, acting
                                                                    as Agent, with an address for service in Luxembourg at the
European Communities in Case T-99/94 between
                                                                    office of Georgios Kremlis, Wagner Centre, Kirchberg.
Asociacion Espanola de Empresas de la Carne (Asocarne)
and Council of the European Union was brought before the
Court ofJustice of the European Communities on 4 January            The Appellant claims that the Court should:
1995 by Asociacion Espanola de Empresas de la Carne
(Asocarne), represented by Paloma Llaneza Gonzalez, of the          1 . declare that,
Madrid Bar, with an address for service in Luxembourg at
the Chambers of Loesch & Wolter, 11 Rue Goethe, BP                        — by maintaining in respect of the French community
1107, Luxembourg L-1011 .                                                     in the French-speaking region a system of prior