CELEX: C2002/274/64
Language: en
Date: 2002-11-09 00:00:00
Title: Case T-282/02: Action brought on 11 September 2002 by Cementbouw Handel & Industrie B.V. against the Commission of the European Communities

9.11.2002              EN                       Official Journal of the European Communities                                       C 274/37
Decision of the Board of       Decision of the examiner set aside          Pleas in law and main arguments
Appeal:                        in so far as it applies to services in
                               Class 35. Dismissal of the remain-
                               der of the appeal.
                                                                           The applicant contests Commission Decision C(2002) 2315,
Pleas in law:                  —     Infringement of Article               of 26 June 2002.
                                     7(1)(c) of Regulation (EC)
                                     No 40/94 ( 2);
                               —     Infringement of Article
                                     7(1)(b) of Regulation (EC)            The applicant is active in the building materials sector. In
                                     No 40/94.                             1999, the applicant and Franz Haniel & Cie GmbH acquired
                                                                           from Ruhrkohle AG its shares in certain factories which were
                                                                           members of the ‘Coöperatieve verkoop en produktievereniging
                                                                           van kalkzandsteenproducenten’ (CVK), a co-operative organ-
( 1) Case R 239/2002-3.                                                    ization for Dutch calcium silicate producers. According to the
( 2) Council Regulation (EC) No 40/94 of 20 December 1993 on the           contested Decision, the applicant and Franz Haniel thereby
     Community trade mark (OJ 1994 L 11, p. 1).                            gained joint control of CVK. The Decision further states that
                                                                           the second set of commitments offered by the applicant and
                                                                           Franz Haniel are sufficient to ensure that the concentration
                                                                           would be compatible with the common market.
                                                                           In support of its application, the applicant submits that the
                                                                           Commission has infringed Article 3 of Council Regulation
                                                                           No 4064/89 (1). According to the applicant, the Commission
Action brought on 11 September 2002 by Cementbouw                          erred in concluding that the applicant and Franz Haniel have
Handel & Industrie B.V. against the Commission of the                      joint control of CVK. The applicant furthermore claims that
                     European Communities                                  the Commission did not provide sufficient evidence for this
                                                                           conclusion and failed to give reasons for it, in breach of
                                                                           Article 253 of the EC Treaty.
                          (Case T-282/02)
                         (2002/C 274/64)                                   The applicant also submits that the Commission has infringed
                                                                           Article 2 of Regulation No 4064/89. According to the
                                                                           applicant, the Commission erred in concluding that the
                   (Language of the case: English)                         transaction under which the shares in Ruhrkohle AG were
                                                                           acquired by the applicant and Franz Haniel led to a dominant
                                                                           position for CVK on the market for building materials for
                                                                           load-bearing walls in the Netherlands. Nor, the applicant
                                                                           claims, did the Commission provide sufficient evidence in
                                                                           support of this conclusion or provide a statement of its reasons
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 for it, in breach of Article 253 of the EC Treaty.
European Communities on 11 September 2002 by
Cementbouw Handel & Industrie B.V., Amsterdam, Nether-
lands, represented by W. Knibbeler, Advocaat and
O. W. Brouwer, Advocaat.                                                   The applicant finally claims that Article 3 and 8(2) of
                                                                           Regulation 4064/89 were misapplied, and the principle of
                                                                           proportionality was breached by the Commissions failure to
                                                                           accept the first set of commitments submitted by the applicant
The applicant claims that the Court should:                                and Franz Haniel.
—      annul Article 1 of the contested Decision;
                                                                           (1 ) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
—      annul Article 2 of the contested Decision;                               the control of concentrations between undertakings (OJ L 395,
                                                                                p. 1) (republished in OJ 1990, L 257, p. 13).
—      annul Article 3 of the contested Decision;
—      order the Commission to pay the costs.