CELEX: C2000/247/10
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-205/00 P: Appeal brought on 24 May 2000 by Irish Cement Ltd against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in joined cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 between Cimenteries CBR SA and others and the Commission of the European Communities

26.8.2000               EN                      Official Journal of the European Communities                                        C 247/7
(ii) The Court of First Instance unjustifiably finds Aalborg               The Appellant claims that the Court should:
      Portland A/S responsible for the infringements set out in
      Article 4(1) (establishment of the ETF) and Article 4(3)(a)
      (concerted practice designed to withdraw Calcestruzzi as             (a)   set aside or annul the judgment of the Court of First
      a customer from the Greek producers, in particular Titan)                  Instance in so far as it upholds the Decision of the
      of the Decision, alternatively in so far as responsibility                 Commission (2) in respect of Irish Cement Ltd;
      for this is extended beyond 9 September 1986.
                                                                           (b) set aside or annul part of the judgment of the Court of
                                                                                 First Instance in so far as it upholds the Decision of the
(1) OJ C 101 of 22.4.1995, pp 10-20; C 119 of 13.5.1995, pp 13-                  Commission in respect of Irish Cement Ltd;
    26; C 137 of 3.6.1995, pp 23-28, 33 and 34, and C 208 of
    12.8.1995, pp 26 and 27.
(2) Commission Decision 94/815/EC of 30 November 1994 relating             (c)   in lieu thereof:
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).
(3) First Regulation implementing Articles 85 and 86 of the Treaty,              (i)   declare that the Decision of the Commission is void;
    OJ English Special Edition 1959-1962, p. 87.
(4) Regulation No 2988/74 of 26 November 1974 concerning limi-
    tation periods in proceedings and the enforcement of sanctions               (ii) make an order cancelling or, in the alternative,
    under the rules of the European Economic Community relating to                     reducing the fine imposed upon the Appellant;
    transport and competition.
                                                                                 (iii) make an order awarding the Appellant its costs
                                                                                       against the Commission.
                                                                           Pleas in law and main arguments
                                                                           Prior to the oral procedure the Court of First Instance ordered
Appeal brought on 24 May 2000 by Irish Cement Ltd                          the Commission to comply with two measures of organisation
against the judgment delivered on 15 March 2000 by the                     of procedure, to enable the Appellants to have access to the
Court of First Instance of the European Communities                        documents which had not been disclosed to them during
(Fourth Chamber, Extended Composition) in joined cases                     the administrative procedure. The Commission ultimately
T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,                      complied with these measures.
T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,                      The Appellant contends that:
T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95,
T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95,
T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 (1)                       (a)   The Court of First Instance does not have competence to
between Cimenteries CBR SA and others and the Com-                               attempt to retrospectively repair the defective procedures
            mission of the European Communities                                  of the Commission and, furthermore, was not empowered
                                                                                 to conclude that the outcome of the administrative
                                                                                 procedure could not have been different if access to the
                         (Case C-205/00 P)
                                                                                 file had been given at the appropriate time;
                          (2000/C 247/10)
                                                                           (b) By requiring submissions on how the documents made
                                                                                 available might have affected the position of the Appellant
An appeal against the judgment delivered on 15 March by the                      and then adjudicating on those submissions the Court of
Court of First Instance of the European Communities (Fourth                      First Instance committed a breach of procedure;
Chamber, Extended Composition) in joined cases T-25/95 etc.
between Cimenteries CBR SA and others and the Commission
of the European Communities, was brought before the Court                  (c)   The Court of First Instance made a serious error of
of Justice of the European Communities on 24 May 2000 by                         assessment when it found that the Appellants’ access to
Irish Cement Ltd, a company incorporated under Irish law,                        the investigation file was equal to that which they should
established in Dublin, represented by Paul Sreenan, SC, and                      have had during the administrative procedure. Arising
John Glackin, Solicitor, of Gerrard, Scallan & O’Brien, Solici-                  from this manifest error of assessment, the Court of First
tors, Dublin, with an address for service in Luxembourg at the                   Instance’s subsequent approach to the assessment of the
Chambers of Kramer Associés & Clifford Chance, 6 rue                             effect of the infringements on the rights of the defence is
Heinrich Heine.                                                                  fundamentally flawed.
 ---pagebreak--- C 247/8                EN                       Official Journal of the European Communities                                       26.8.2000
(d) The Court of First Instance’s judgment is also vitiated by                   (iii) order the Commission to pay the costs.
      a lack of reasoning and failure to respond to arguments
      of the Appellant.
                                                                           Pleas in law and main arguments
(1) OJ C 101 of 22.4.1995, pp 10-20; C 119 of 13.5.1995, pp 13-            —     Error of law inasmuch as the judgment under appeal
    26; C 137 of 3.6.1995, pp 23-28, 33 and 34, and C 208 of                     finds that the consultation with the Advisory Committee
    12.8.1995, pp 26 and 27.                                                     on Restrictive Practices and Abuses of Dominant Pos-
(2) Commission Decision 94/815/EC of 30 November 1994 relating
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
                                                                                 itions was properly conducted: the case-law of the Court
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).                    of Justice requires that the Advisory Committee should
                                                                                 be consulted at least orally on the amount of the fines
                                                                                 envisaged.
                                                                           —     Manifest error of assessment in so far as the judgment
                                                                                 under appeal finds that Compagnie des Ciments Belges
                                                                                 was under the control of Ciments Français at the time of
                                                                                 the infringement and inasmuch as the turnover of that
                                                                                 subsidiary was not excluded from the basis of assessment
                                                                                 on which the fine imposed on Ciments Français was
                                                                                 calculated.
Appeal brought on 26 May 2000 by Ciments Français S.A.                     —     Infringement of the principle of proportionality inasmuch
against the judgment delivered on 15 March 2000 by the                           as the judgment under appeal does not reduce the amount
Court of First Instance of the European Communities                              of the fine imposed on Ciments Français in proportion to
(Fourth Chamber, Extended Composition) in Case T-39/95                           the complaints against Ciments Français which were
Ciments Français S.A. v Commission of the European                               annulled by the Court of First Instance.
                           Communities
                                                                           —     Error of law inasmuch as the judgment under appeal
                                                                                 states that the Commission was entitled to base itself on
                        (Case C-211/00 P)                                        the turnover for 1992 for the purpose of calculating the
                                                                                 fine imposed on Ciments Français: under Article 15(2) of
                         (2000/C 247/11)                                         Regulation No 17/62, the turnover which is to serve as
                                                                                 the basis for calculation of the fine is in principle that of
                                                                                 the business year preceding adoption of the decision. The
An appeal has been brought before the Court of Justice of the                    Court of First Instance departed from that interpretation
European Communities on 26 May 2000 by Ciments Français                          and failed to give reasons for so doing.
S.A., represented by Antoine Winckler, with an address for
service in Luxembourg at the Chambers of Elvinger & Hoss,
15 Côte d’Eich, against the judgment delivered on 15 March
2000 by the Court of First Instance of the European Communi-
ties (Fourth Chamber, Extended Composition) in Case
T-39/95 Ciments Français S.A. v Commission of the European
Communities.
                                                                           Appeal brought on 30 May 2000 by Italcementi SpA
The appellant claims that the Court should:                                against the judgment delivered on 15 March 2000 by the
                                                                           Court of First Instance of the European Communities
                                                                           (Fourth Chamber, Extended Composition) in Joined Cases
—     Annul in part, pursuant to Article 225 EC and Article 54             T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,
      of the EC Statute of the Court of Justice, the judgment              T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
      delivered on 15 March 2000 by the Court of First Instance            T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
      in Case T-39/95 Ciments Français S.A. v Commission of                T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,
      the European Communities;                                            T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95,
                                                                           T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95,
—     grant the forms of order sought by Ciments Français at               T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
      first instance, namely:                                              between Cimenteries CBR SA and Others and the Com-
                                                                                       mission of the European Communities
      (i)    annul, pursuant to Article 230 EC, the Commission
             decision of 30 November 1994 relating to a pro-                                       (Case C-213/00 P)
             ceeding under [Article 81 EC] in Cases IV/33.126
             and 33.322;
                                                                                                    (2000/C 247/12)
      (ii) in the alternative, reduce, pursuant to Article 229
             EC and Article 17 of Regulation No 17/62, the fine            An appeal against the judgment delivered on 15 March by the
             imposed on Ciments Français; and                              Court of First Instance of the European Communities (Fourth