CELEX: C1995/119/33
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 17 February 1995 by Groupe Origny, a limited liability company succeeding to the rights of the limited liability company Cedest, against the Commission of the European Communities (Case T-38/95)

13 . 5 . 95         LJN                 Official Journal of the European Communities                                 No C 119/ 13
Instance of the European Communities on 15 February                Action brought on 17 February 1995 by Groupe Origny, a
1995 by the International Express Carriers Conference,             limited liability company succeeding to the rights of the
established at 9 Rue de la Terrassière, CH-1207 Geneva,            limited liability company Cedest, against the Commission of
Switzerland, represented by Eric Morgan de Rivery, of the                              the European Communities
Paris Bar, and by Jacques Derenne, of the Brussels and Paris                                 ( Case T-38/95 )
Bars, with an address for service in Luxembourg at the
Chambers of Alex Schmitt, Bonn & Schmitt, 62 Avenue                                            ( 95/C 119/33
Guillaume .
                                                                                     (Language of the case: French)
The applicant claims that the Court should :
                                                                   An action against the Commission of the European
— declare that the Commission's failure to define its              Communities was brought before the Court of First
     position within two months of receipt of the formal           Instance of the European Communities on 17 February
     request contained in the applicant's letter of 23             1995 by Groupe Origny, a limited liability company having
     November 1994 in relation to the aspects of the               its registered office in Paris ( France ) and succeeding to the
     complaint of 13 July 1988 , as supplemented thereafter,       rights of the limited liability company Cedest, represented
     concerning:                                                   by Xavier de Roux, of the Paris Bar, with an address for
                                                                   service in Luxembourg at the Chambers of Jacques Loesch,
                                                                   8 Rue Zithe .
    — the application of Article 85 , and
    — the application of Article 86,                               The applicant claims that the Court should:
     is in breach of Article 175 of the Treaty,                    — annul in whole or in part Article 1 , Article 3 ( 3 ) ( a ) and
                                                                        Article     9.20    of     the  Commission   decision     of
— order the Commission to pay the costs of the application              30 November 1994, in so far as those articles concern
     even in the event that the Commission should take action           Cedest,
     which is held by the Court to render the action devoid of
     purpose .
                                                                   — in the alternative, amend Article 9 of the Commission
                                                                        decision so as to set aside or reduce substantially the fine
                                                                        imposed on Cedest,
Pleas in law and main arguments adduced in support:
                                                                   — order the Commission to pay the costs .
The Commission failed to define its position on both aspects
of the applicant's complaint within two months of being
                                                                   Pleas in law and main arguments adduced in support:
requested to do so by the applicant, contrary to the second
paragraph of Article 175 of the EEC Treaty. Since the              The applicant relies on the following pleas in law in support
application was brought within the ensuing two-month               of its action :
period, it must be declared admissible.
                                                                    L Formal and procédural defects:
With regard to Article 85, the alleged disappearance (which
is denied) of the restriction of competition complained of               1 . Failure to attribute the complaints to individual
cannot entitle the Commission to dispense with the                           undertakings.
obligation to define its position. Although, in the context of
the procedure under Regulation No 17, it sent a letter to the            2. Extremely short period for examination of the file,
IECC under Article 6 of Regulation No 99/63 , the                            which was not only disproportionate in relation to
Commission did not dismiss this aspect of the complaint.                     the duration of the investigation but was also
                                                                             unjustified by reason of the absence of any
With regard to Article 86, a letter stating that the                         urgency .
Commission is pursuing the matter cannot fulfil the
Commission's obligation to define its position. In view of               3 . Failure clearly to identify the documents on the file
the length of time which elapsed between the filing of the                   and to, provide a list of accessible documents .
complaint and the dispatch of the letter calling upon
the Commission to act, the applicant is entitled to obtain               4. Refusal to grant access to all documents on the
from the Commission either a reasoned decision stating that                  file .
an investigation of the complaint was unnecessary or a
provisional notice under Article 6 of Regulation                         5 . Refusal to grant the applicant a separate hearing.
No 99/63 .
                                                                   II. With regard to the practices complained of:
The application must therefore be declared to be
well-founded in regard to the aspects of the complaint                   1 . Lack of evidence : the Commission has failed to
concerning both Article 85 and Article 86 of the EEC
                                                                             establish the applicant's alleged involvement in the
Treaty.
                                                                             two agreements concerned relating to respect for
                                                                             home markets and the regulation of transfers of
                                                                             goods between France and Germany.
 ---pagebreak--- No C 119/14            EN                    Official Journal of the European Communities                                                13 . 5 . 95
     2. Incorrect analysis of the applicant's market                               with the fact that the Commission chose to
          conduct: in forming the view that the applicant was                      incriminate only a selection of European cement
          involved in an agreement to limit transhipments of                       producers. The applicant also takes the view that
          cement between France and Germany, the                                   the Commission could not, without contradicting
          Commission was guilty of a manifest error in                             itself, define the geographical reference market as
          interpretation of the facts.                                              being both local and European at the same time.
                                                                         II. Manifest error of assessment: the applicant submits
                                                                              that the complaints upheld against it — regarded by the
                                                                              Commission as the application of a general agreement
                                                                              — are either non-existent or without relation to the
Action brought on 17 February 1995 by Société Ciments
                                                                              applicant and, in any event, unconnected to a general
Français SA against the Commission of the European
                            Communities                                       agreement. The applicant also takes the view that the
                                                                              evidence which ostensibly establishes the existence of a
                         (Case T-39/95 )                                      general agreement to 'respect home markets' is
                           ( 95/C 119/34 )                                    manifestly inadequate.
                 (Language of the case: Frencb)                         III. Breach of the principles of non-discrimination and
                                                                              proportionality, along with breach of the principles of
An action against the Commission of the European                              sound administration and the protection of legitimate
Communities was brought before the Court of First                             expectations.
Instance of the European Communities on 17 February
1995 by Société Ciments Français SA, having its registered              IV. In the alternative, the applicant submits that the fines
office in Paris ( France ), represented by Antoine Winckler, of               imposed on it should be reduced substantially. It takes
the Paris Bar, with an address for service in Luxembourg at                   the view that the Commission :
the Chambers of Elvinger & Hoss, 15 Côte d'Eich.
                                                                              1 , committed manifest errors in its calculation;
The applicant claims that the Court should :
                                                                              2 , failed properly to take account of the gravity of the
— annul the Commission decision of 30 November                                     alleged infringements and on that ground
     1994,                                                                         committed a serious breach of the principle of
                                                                                   proportionality;
— in the alternative, reduce the fines imposed,
                                                                              3 , chose an incorrect relevant market as the basis for
— order the Commission to pay the costs .                                          calculating the fine .
Pleas in law and main arguments adduced in support:
In support of its action, the applicant relies on the following
pleas in law:
                                                                        Action brought on 18 February 1995 by Société Lafarge
  I.  Procédural defects :                                                   Coppée against the Commission of the European
                                                                                                       Communities
      1 . Breach of the right to a fair hearing. The applicant
                                                                                                     (Case T-43/95 )
           submits that there has been a failure to comply with
           the principle that all parties should be heard in                                          ( 95/C 119/35 )
           administrative proceedings: first, on the ground of
           non-communication          or   absence     of  details                        (Language of tbe case: French)
           connecting individuals to certain fundamental
           complaints; second, on the ground that there was
                                                                        An action against the Commission of the European
           no full access to the file documents; and, finally, by
                                                                        Communities was brought before the Court of First
           reason of the restrictions imposed on the
                                                                        Instance of the European Communities on 18 February
           applicant's opportunity to set out its view
                                                                        1 995 by Société Lafarge Coppée, having its registered office
           regarding the complaints finally upheld against
           it.
                                                                        in Paris ( France ), represented by Henry Lesguillons, of the
                                                                        Paris Bar, with an address for service in Luxembourg at the
      2 . The Advisory Committee was not called to                      Chambers of Marc Loesch, 11 Rue Goethe.
           comment on the exact amount of the fines
           envisaged by the Commission.                                The applicant claims that the Court should:
      3 . Failure to state reasons. The applicant points out in        — annul the Commission Decision of 30 November 1994
           this regard that the theory of a 'single and                     in its entirety, or at least Articles 1 , 3 ( 1 ) ( a ) and 3 ( 3 ) ( a ),
           continuous agreement' involving practically the                  4 ( 1 ), 4 ( 2 ), 4 ( 3 ) ( a ), 4 (4 ) (e ) and 4 (4 ) ( f), 6 and 7
           entire European cement industry is directly at odds              thereof,