CELEX: C2002/068/25
Language: en
Date: 2002-03-16 00:00:00
Title: Case T-322/01: Action brought on 20 December 2001 by Roquette Frères S.A. against the Commission of the European Communities

16.3.2002               EN                      Official Journal of the European Communities                                     C 68/13
Pleas in law and main arguments                                            on 17 December 2001 by Omar Mohamed Othman, represent-
                                                                           ed by Ms Fiona Lindsley of Birnberg Peirce & Partners, London
                                                                           (United Kingdom)
The applicant has since 1993 been the sole owner of Glucona
B.V., a company producing sodium gluconate. Glucona had
previously been a joint venture between the applicant and its              The applicant claims that the Court should:
then partner. Glucona was involved in a cartel concerning the
sale of sodium gluconate. The contested decision orders the                —     Annul Council Regulation 467/2001 and Commission
applicant to pay a fine in that regard.                                          Regulation 2062/2001.
In support of its claim, the applicant pleads, primarily,
failure to comply with essential procedural requirements. In
                                                                           Pleas in law and main arguments
particular, it asserts that its rights of defence have been violated
and that an insufficient statement of reasons was given. Thus,
the applicant was not given an opportunity to comment on                   The applicant in the present case, a citizen of Jordan and
the statements made about the applicant by another party                   lawfully residing in the United Kingdom, challenges Council
involved in the investigation.
                                                                           Regulation (EC) No 467/2001 and Regulation (EC)
                                                                           No 2062/2001 of 19 October 2001, amending, for the third
                                                                           time, Council Regulation (EC) No 467/2001 prohibiting
The applicant further pleads infringement of Article 81(1) EC
                                                                           the export of certain goods and services to Afghanistan,
and Article 15(2) of Regulation No 17/62 (1). According to the
                                                                           strengthening the flight ban and extending the freeze of funds
applicant, the conduct of Glucona during the period from
                                                                           and other financial resources in respect of the Taliban of
1987 and 1993 cannot be attributed to it. During that period
                                                                           Afghanistan and repealing Regulation (EC) No 337/2000 (1).
the applicant’s partner in Glucona was responsible for sales
                                                                           The applicant is named in Regulation (EC) 2062/2001.
policy and the applicant itself had no information whatever in
that regard. It was not until 1993, when the applicant obtained
total control over Glucona, that it was made aware of the
                                                                           According to the applicant, the Council and the Commission
cartel and was thus placed in a position of responsibility
                                                                           have misused their powers conferred by Article 60 and 301
therefor.
                                                                           EC Treaty in adopting the Regulations in question. Further-
                                                                           more, the applicant contends that the Regulations violate his
                                                                           human rights, specifically Articles 3 and 8 of the European
Lastly, the applicant pleads violation of the principle of
                                                                           Convention on Human Rights. Finally, the applicant claims
proportionality, inasmuch as the Commission failed to take
                                                                           that the measures are disproportionate and in violation of the
account of the purely passive role played by the applicant in
                                                                           principle of subsidiarity.
the cartel until 1993.
                                                                           (1) OJ L 277, of 20.10.2001, p. 25.
(1) Regulation No 17: First Regulation implementing Articles 85
    and 86 of the Treaty (OJ, English Special Edition 1959-1962,
    p. 87).
                                                                           Action brought on 20 December 2001 by Roquette
                                                                           Frères S.A. against the Commission of the European
Action brought on 17 December 2001 by Omar Mohamed                                                   Communities
Othman against the Council of the European Union and
       the Commission of the European Communities
                                                                                                   (Case T-322/01)
                          (Case T-318/01)
                                                                                                    (2002/C 68/25)
                           (2002/C 68/24)
                                                                                              (Language of the case: French)
                   (Language of the case: English)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
An action against the Council of the European Union and the                European Communities on 20 December 2001 by Roquette
Commission of the European Communities was brought                         Frères S.A., established at Lestrem (France), represented by
before the Court of First Instance of the European Communities             Antoine Choffel and Olivier Prost, lawyers.
 ---pagebreak--- C 68/14                EN                     Official Journal of the European Communities                                       16.3.2002
The applicant claims that the Court should:                                    —     assessed the role played by Roquette in the cartel
                                                                                     without taking account of part played by he appli-
                                                                                     cant in restraining its implementation;
—     annul Article 1 of the contested decision in so far as it
      considers — in the case of Roquette — that the infringe-
      ment lasted from February 1987 to June 1995;                             —     minimised the nevertheless decisive nature of the
                                                                                     information supplied by Roquette to prove the
                                                                                     existence of the cartel and to explain the way in
—     annul Article 3 of the contested decision in so far as it                      which it worked;
      imposes a fine of 10,8 million euros on Roquette Frères;
                                                                         —     violation of the principle ne bis in idem, inasmuch as the
—     in the exercise of its unlimited jurisdiction, reduce the                Commission failed to take account of the fact that
      amount of the fine imposed on Roquette Frères;                           Roquette had already been fined $ 2 500 000 by the US
                                                                               authorities on account of a breach concerning the same
                                                                               subject-matter as that giving rise to the contested decision.
—     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                         Action brought on 11 December 2001 by Axions S.A.
By a decision adopted on 2 October 2001, the European Union              and Christian Belce against the Office for Harmonisation
imposed on the applicant company a fine of 10,8 million euros                 in the Internal Market (Trade Marks and Designs)
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they                                           (Case T-324/01)
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
                                                                                                   (2002/C 68/26)
contracts concluded with customers.
                                                                                            (Language of the case: German)
By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:
                                                                         An action against the Office for Harmonisation in the Internal
—     infringement of Article 15 of Regulation No 17 and                 Market (Trade Marks and Designs) was brought before the
      violation of the principles of equality and proportionality,       Court of First Instance of the European Communities on
      inasmuch as the Commission failed adequately to assess             11 December 2001 by Axions S.A., of Geneva (Switzerland),
      either the seriousness or the duration of the breach. More         and Christian Belce, of Veyrier (Switzerland), represented by
      particularly, according to the applicant, the defendant            C. Eckhartt, lawyer.
      included, in the turnover figure used to calculate the basic
      amount of the fine, the sales volumes relating to another
      product (stock-solutions) which never formed the subject-          The applicant claims that the Court should:
      matter of the breach. In addition, the Commission fixed
      the date of the breach as June 1995, whereas the leader            —     annul the decision adopted on 26 September 2001 by
      of the cartel in the Commission’s eyes itself confirmed                  the Third Board of Appeal of the Office for Harmonisation
      that Roquette had decided to cease providing statistics                  in the Internal Market (Trade Marks and Designs) in Case
      from 1994 onwards and various items of evidence arising                  No R 599/2001-3;
      from the Commission’s investigations and from the
      cooperation provided by the various undertakings
                                                                         —     order the defendant Office to pay the costs.
      showed that Roquette had left the cartel in 1994;
—     misapplication by the Commission of its guidelines for
      calculating fines, as regards mitigating factors, and of its       Pleas in law and main arguments
      communication concerning the non-imposition of fines
      or the reduction of the amount thereof in cartel cases. The
      applicant asserts in that connection that the defendant:
                                                                         The trade mark con-            a three-dimensional mark rep-
      —     assessed the supposed effects of the cartel without          cerned:                        resenting a cigar, brown in colour
            taking account of the information and evidence
            provided by the applicant, which show the limited            Goods or services:             goods in Class 30 (chocolate,
            effect which the cartel had on the market for the                                           chocolate goods, bakery wares
            product in question;                                                                        and confectionery)