CELEX: C1996/180/85
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 16 April 1996 by Sogecable SA against the Commission of the European Communities (Case T-52/96)

No C 180/34                EN                 Official Journal of the European Communities                                    22 . 6 . 96
— order        the      Council     to   bear the   costs     of this        and the Tribunal de Defensa de la Competencia de
       proceeding.                                                           Espana ( Spanish Court for the Defence of Competition )
                                                                             respectively, and made public by way of a statement of
Pleas in law and main arguments:                                             the spokesperson for the Commissioner responsible for
                                                                             Competition Policy on 8 February 1996, in which
                                                                             the Commission concluded that the concentration
The applicant, a limited company established under the laws
of the Republic of Korea , produces a wide range of food and                 by which Cablevision SA was taken under joint
chemicals products, including monosodium glutamate                           control constitutes a concentration operation with a
 (' MSG'), a product used as a flavour enhancer in food                      Community dimension;
 products . On 3 November 1 995 , it lodged an application for
annulment against Commission Regulation ( EC )                           — order the defendant to pay the costs .
No 1754/95 imposing a provisional anti-dumping duty on
 imports of monosodium glutamate originating in Indonesia ,
the Republic of Korea , Taiwan and Thailand ( 1 ). The act               Pleas in law and main arguments:
challenged in the present application is Council Regulation
 ( EC ) No 8 1 /96 ( 2 ), imposing definitive anti-dumping duties        The applicant submits that, on 26 July 1995 , Telefonica de
on imports of monosodium glutamate originating in Korea,                 Espana, SA and its subsidiary Telecartera , SA, on the one
Indonesia and Taiwan .                                                   hand, and Sociedad de Gestion de Cable, SA and Sociedad
                                                                         de Television Canal Plus, SA ( two companies which, since
The grounds, on the basis of which the legality of the                  January 1 996 , constitute a single company known from
contested Regulation is challenged, can be summarized as                 March 1996 as Sogecable ) on the other, signed agreements
follows :                                                                which involved the transformation of Sociedad General de
                                                                         Cablevision, SA into a joint venture of a concentrated nature
 1 , the Council has wrongly determined the applicant's                  and intended to provide multimedia services, not including
       dumping margin, and hence the applicant's                         telecommunications, to local cable operators . Since those
       anti-dumping duty, in that it has determined the                  agreements implied the existence of an economic
       applicant's export price on the basis of Articles 2 ( 8 ) ( b )   concentration, the signatory undertakings considered
       and 7 ( 7 ) ( b ) of the anti-dumping Regulation whilst it        whether it had a Community dimension within the meaning
       should have exclusively applied Article 2 ( 8 ) ( a );            of Article 1 ( 2 ) of Regulation ( EEC ) No 4064/89 . After
                                                                         considering the relevant factors, those undertakings arrived
2 , the Council's finding that the imports from the countries            at the conclusion that the concentration had a national
       subject to investigation had, taken in isolation,                 dimension, so that it was excluded from the scope of the
       continued to cause material injury to the Community               regulation . The Commission, on the contrary, found that
       industry is vitiated by fundamental contradictions .              the establishment of Cablevision was a concentration with
                                                                         Community dimension .
f 1 ) Case T-208/95 , OJ No C 351 , 30 . 12 . 1995 , p . 19 .
( 2 ) OJ No L 15 , 20 . 1 . 1996 , p . 20 .                             That     decision   of     the   Commission    constitutes    the
                                                                         subject-matter of the present action based on the
                                                                        infringement of Article 5 ( 4 ) of Regulation ( EEC )
                                                                        No 4064/89 .
                                                                        According to the applicant, the argument of the
Action brought on 16 April 1996 by Sogecable SA against                 Commission is essentially the following: Sogecable is jointly
         the Commission of the European Communities                     controlled by two of its shareholders, Prisa ( Promotora de
                             ( Case T-52/96                             Informaciones, SA ) and Canal Plus Francia ( Canal Plus,
                                96/C 180/85                             Société Anonyme ); consequently, pursuant to Article 5 (4 )
                                                                        of Regulation ( EEC ) No 4064/89, Sogecable's turnover
                                                                        must be added to the turnover of Prisa and Canal Plus
                  (Language of the case: Spanish)                       Francia . The Community dimension results from that
                                                                        aggregate .
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that, vis-à-vis Sogecable, only Prisa is
Instance of the European Communities on 16 April 1 996 by               in any of the situations contemplated by Article 5 ( 4 ) of the
Sogecable SA, whose registered office is in Madrid,                     regulation, namely, that laid down in Article 5 ( 4 ) ( e ) ( has
represented by Santiago Martinez Lage and Rafael                        the right to manage the undertaking's affairs ), although that
Allendesalazar Corcho, of the Madrid Bar, with an address               is not the case so far as Canal Plus Francia is concerned . The
for service in Luxembourg at the Chambers of Aloyse May,                fact of the matter is that the Commission, by its decision,
31 Grand-Rue .
                                                                        seeks in essence to replace the clear, exhaustive and formal
                                                                        criteria of Article 5 ( 4 ) with the vaguer, more imprecise and
The applicant claims that the Court should :                            practical criteria of Article 3 ( 3 ) which is not intended to
                                                                        determine whether a concentration has a Community
— annul the decision of the Commission contained in the                 dimension but merely to define whether an operation
      letters of 6 and 7 February 1996 sent to the applicant            constitutes a concentration. Thus, the Commission infringes
 ---pagebreak--- 22 . 6 . 96               EN                  Official Journal of the European Communities                                   No C 180/35
Article 5 (4 ) which is the only provision applicable in this            Pleas in law and main arguments:
case .
                                                                         The applicants complain that the Commission failed, in the
In the alternative, even assuming that Sogecable were                    context of its task of monitoring trade between Member
'jointly controlled' by Prisa and Canal Plus Francia, as the             States, public health and consumer protection, to introduce
Commission maintains, the applicant states, first, that Prisa            appropriate measures for the protection of public health on
and Canal Plus Francia would not jointly have any of the                 the outbreak of bovine spongiform encephalitis ( BSE),
powers and rights set out in Article 5 ( 4 ) ( b ) and, secondly,        known as ' mad cow disease '. They state that the steps taken
that, even if they jointly had the powers and rights laid down           by the Commission since 1 988 to prevent the spread of BSE,
in Article 5 ( 4 ) ( b ), their turnover should not be added to          and possibly Creutzfeldt-Jacob's disease, must be regarded
Sogecable's turnover, pursuant to Article 5 ( 4 ) ( c ).                 as inadequate, having regard to the embargo measures
                                                                         precipitately decided on 26 March 1996 by that same
                                                                         Commission, which nevertheless has no more information
                                                                         than previously on any potential risk. The applicants
                                                                         maintain that the Commission is liable, inasmuch as it
                                                                         breached the principle of proportionality and made an
                                                                         incorrect assessment of the facts, giving rise to a risk to
                                                                         public health and consumers and having a manifest impact
                                                                         on trade in bovine livestock in the European Union .
Action brought on 16 April 1996 by Syndicat des
Producteurs de Viande Bovine de la Coordination Rurale,
Syndicat des Producteurs de Lait de la Coordination Rurale               Although the first recorded case of mad cow disease dates
and Philippe de Villiers against the Commission of the                   from 1986 , on a farm in Kent in the United Kingdom, and
                      European Communities                               despite numerous communications, scientific and
                                                                         journalistic, confidential and public, on the risks of the
                            ( Case T-53/96 )
                                                                         spread of BSE and the risks of human contamination, the
                              ( 96/C 180/86 )                            Commission, on the pretext of a lack of scientific certainty,
                                                                         failed to take the only measure to be taken in the face of a
                                                                         public health risk, namely the total prohibition of exports
                (Language of the case: French)                           and the possible slaughter of herds .
An action against the Commission of the European                         The applicants consider that the Commission failed to
Communities was brought before the Court of First                        perform its obligation to supervise and monitor
Instance of the European Communities on 16 April 1996 by                 intra-Community trade . As a result of that failure, they, like
the Syndicat des Producteurs de Viande Bovine de la                      any other European citizen, have suffered non-material
Coordination Rurale and the Syndicat des Producteurs de                  damage for which they seek reparation; some of the
Lait de la Coordination Rurale, established at L'Isle                    applicants also claim to have suffered material damage, the
Jourdain ( France ), and Philippe de Villiers , residing at Les          extent of which is to be established in the course of the
Aubretières ( France ), represented by Alexandre Varaut, of              proceedings .
the Paris Bar .
The applicants claim that the Court should:
— declare the European Commission liable, on the basis of
     Article 178 and the second paragraph of Article 215 of
     the Treaty on European Union, for failure to introduce              Action brought on 17 April 1996 by Oleifici Italiani SpA
     measures for the protection of public health on the                  and F.lli Rubino Industrie Olearie SpA against the
     outbreak of bovine spongiform encephalitis, known as                            Commission of the European Communities
     mad cow disease ;
                                                                                                      ( Case T-54/96 )
                                                                                                        ( 96/C 180/87
— order the European Union to pay the Syndicat des
     Producteurs de Viande Bovine de la Coordination
     Rurale, the Syndicat des Producteurs de Lait de la                                      (Language of the case: Italian)
     Coordination Rurale and Philippe de Villiers the sum of
     FF 1 as token damages for the non-material damage
     suffered;
                                                                          An action against the Commission of the European
                                                                          Communities was brought before the Court of First
— appoint such expert as the Court may think fit to                       Instance of the European Communities on 17 April 1 996 by
     determine the loss suffered by the members of the                    Oleifici Italiani SpA, whose registered office is at Ostuni
     Syndicat des Producteurs de Viande Bovine de la                      ( BR ) ( Italy ), and F.lli Rubino Industrie Olearie SpA, whose
     Coordination Rurale and the Syndicat des Producteurs                 registered office is at Bari ( Italy ), represented by Antonio
     de Lait de la Coordination Rurale .                                  Tizzano and Gianmichele Roberti, both of the Naples Bar,