CELEX: C2002/305/54
Language: en
Date: 2002-12-07 00:00:00
Title: Case T-303/02: Action brought on 4 October 2002 by Westfalen Gassen Nederland B.V. against the Commission of the European Communities

7.12.2002              EN                     Official Journal of the European Communities                                       C 305/25
Action brought on 4 October 2002 by Westfalen Gassen                     Furthermore, according to the applicant, the Commission has
Nederland B.V. against the Commission of the European                    failed to take account of the fact that, by virtue of the attitude
                           Communities                                   adopted it at meetings of the Vereniging van Fabrikanten van
                                                                         Industriële Gassen (Association of Manufacturers of Industrial
                                                                         Gases), smaller undertakings were excluded from further
                         (Case T-303/02)                                 involvement in the discussions concerning the concerted
                                                                         practices at issue. The applicant’s attitude was not passive; on
                                                                         the contrary, it actively opposed those practices. According to
                         (2002/C 305/54)                                 the applicant, the attitude thus adopted by it in fact had an
                                                                         effect which was beneficial to competition.
                   (Language of the case: Dutch)
                                                                         The applicant further claims that the Commission is mistaken
                                                                         as to the duration of the infringement allegedly committed by
                                                                         it.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Finally, the applicant claims that the fine imposed is contrary
European Communities on 4 October 2002 by Westfalen                      to the principles of proportionality and equality. According to
Gassen Nederland B.V., established at Deventer (Netherlands),            the applicant, having regard to the turnover figure at the time
represented by J.J.M. Essers, lawyer.                                    of the infringement, it has in relative terms suffered the
                                                                         heaviest penalty, and the Commission, when fixing the amount
                                                                         of the fine, proceeded on the basis of incorrect factual
                                                                         assumptions.
The applicant claims that the Court should:
(1) primarily, annul Articles 1 and 3 of the Commission’s
      decision of 24 July 2002 in case COMP/E-3/36.700 —
      Industrial and medical gases, imposing on the applicant a
      fine of EUR 0.43 million for infringement of Article 81(1)
      EC;
                                                                         Action brought on 7 October 2002 by NV Hoek Loos
(2) alternatively, annul Article 1 of that decision and substan-           against the Commission of the European Communities
      tially reduce the fine imposed by Article 3 thereof;
                                                                                                   (Case T-304/02)
(3) order the Commission to pay the costs.
                                                                                                   (2002/C 305/55)
                                                                                              (Language of the case: Dutch)
Pleas in law and main arguments
The applicant has been active on the Netherlands market since            An action against the Commission of the European Communi-
1989. It imports industrial gases from Germany from its                  ties was brought before the Court of First Instance of the
parent company, Westfalen AG, or purchases them from other               European Communities on 7 October 2002 by NV Hoek
producers.                                                               Loos, established at Schiedam (Netherlands), represented by
                                                                         J.J. Feenstra and B.F. van Harninxma thoe Slooten, lawyers.
By the contested decision, the Commission found that the
applicant had participated in concerted practices relating to            The applicant claims that the Court should:
price increases, moratoria and minimum prices in respect of
the Netherlands market.                                                  (1) primarily, annul Article 3 of the contested decision, in so
                                                                                far as it concerns the fine imposed on the applicant;
In support of its claim, the applicant states that the Com-              (2) alternatively, in the exercise of its unfettered jurisdiction
mission has produced no proof, or no sufficient proof, of any                   and applying justice in an appropriate manner, substan-
infringement by it of Article 81(1) EC. Thus, the Commission                    tially reduce the fine imposed on the applicant;
has not proved, or has not sufficiently proved, that the
applicant took part in the concerted practices.                          (3) order the Commission to pay the costs.