CELEX: C1995/101/30
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 16 February 1995 by Verenigung Nederlandse Cementindustrie against the Commission of the European Communities (Case T-32/95)

22. 4. 95           [IN                   Official Journal of the European Communities                                   No C 101 / 13
D.    costs :                                                        Action brought on 16 February 1995 by Verenigung
                                                                     Nederlandse Cementindustrie against the Commission of
(iv) order the Commission to pay the costs of the action                                  the European Communities
      (including interest on the wrongly paid fine ).                                           (Case T-32/95 )
                                                                                                 ( 95/C 101 /30 )
Pleas in law and main arguments adduced in support:
                                                                                        (Language of the case: Dutch)
— Infringement of essential procedural requirements :
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
    The Commission has infringed the basic rule of                   Instance of the European Communities on 16 February
    (procedural ) competition law, whereby, in a proceeding          1995 by Verenigung Nederlandse Cementindustrie,
    under Article 85 of the EC Treaty, the parties concerned         established at 's-Hertogenbosch, represented by P. A.
    must be given a prior opportunity to comment on the              Wackie Eysten, of the Hague Bar, with an address for service
    objections which the Commission intends to make                  in Luxembourg at the Chambers of L. Frieden, 6 Avenue
    against them, and, more generally, the right to a fair           Guillaume .
    hearing, including the rule laid down by Article 6 of the
    European Convention for the Protection of Human
    Rights ( ECHR). In particular, it has infringed the rights       The applicant claims that the Court should :
    of the defence in that (a ) it allowed the applicant only
    limited access to an incomplete file; ( b ) the objections       A.      primarily:
    communicated by it to the applicant were incomplete
    and fragmentary; (c ) it called upon the applicant to              (i ) annul the (contested parts of the ) Decision of the
    submit a ' defence' against incomplete and fragmentary                   Commission of 30 November 1994 relating to a
    objections; ( d ) it included in the decision fresh                      proceeding under Article 85 of the EC Treaty (cases
    accusations against the applicant which were not                         IV/33.126 and 33.322 — Cement) (*), or at least annul
    levelled as such against the applicant in the statement of               it in relation to VNC, on the ground of infringement of
    objections; and (e ) it imposed on the applicant a                       essential procedural requirements;
    disproportionate fine, without making adequately clear
    in the statement of reasons for the decision which               B.      alternatively:
    specific facts were alleged against it, or at any rate
    imposed a fine which was out of all proportion to the             (ii ) annul the (contested parts of the ) Decision, or at least
    Commission's own finding that the applicant did not                      annul it in relation to VNC, on the ground that it
    participate in agreements implementing the alleged                       infringes the law, including Article 85 of the EC
    Cembureau agreement.                                                     Treaty, Regulation No 17/62 and general legal
                                                                             principles;
— Infringement of one or more higher-ranking rules of law,           C.      in tbe further alternative:
    including Articles 85 ( 1 ) and 190 of the EC Treaty,
    Regulation No 17/62 and/or general legal principles:             (iii ) (considerably) reduce the fine imposed on VNC;
                                                                             and
    The Commission has failed to show that the applicant
    acted contrary to Article 85 of the EC Treaty. More              D.      in any event:
    particularly, it has not demonstrated that the applicant
    'participated' in any agreement between Cembureau                (iv) order the Commission to pay the costs of the action
    members and in any concerted practice between ECEC                       (including interest on the wrongly paid fine ).
    members. That allegation is also incomprehensible —
    and, thus expressed, contrary to Article 190 of the EC           Pleas in law and main arguments adduced in support:
    Treaty — in the light of the finding that the applicant did
    not participate in agreements implementing the alleged           — Infringement of essential procedural requirements
    Cembureau agreement.
                                                                           The Commission has infringed the basic rule of
    The amount of the fine imposed on the applicant was                    (procedural ) competition law, whereby, in a proceeding
    incorrectly determined, or at any rate incompatible with               under Article 85 of the Treaty, the parties concerned
    the law and/or general legal principles, including the                 must be given a prior opportunity to comment on the
    principle of proportionality, and is, at the very least,               objections which the Commission is minded to make
    inadequately reasoned.                                                 against them, and, more generally, the right to a fair
                                                                           hearing, including the rule laid down by Article 6 of the
                                                                           European Convention for the Protection of Human
(!) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                  Rights ( ECHR). In particular, it has infringed the rights
                                                                           of the defence, in that ( a ) it allowed the applicant only
                                                                           limited access to an incomplete and impenetrable file; ( b )
                                                                           the objections communicated by it to the applicant were
 ---pagebreak--- No C 101 /14            EN                  Official Journal of the European Communities                                      22 . 4 . 95
      incomplete and fragmentary; (c ) it refused to hear the          Pleas in law and main arguments adduced in support:
      applicant in relation to certain allegations which have
      resulted in the imposition of a fine; ( d ) it called upon the   The applicant states that, prior to being recruited following
      applicant to submit a defence against incomplete and             an open competition, she was seconded to the Commission
      fragmentary objections; and (e) it included in the               as a national expert; she therefore established her residence
      decision fresh accusations against the applicant which           in Brussels for a period limited to the duration of her
      were not levelled as such against the applicant in the           secondment, whilst retaining her principal residence in
      statement of objections.                                         Madrid. She now contests the fixing of Brussels as her place
                                                                       of recruitment .
— Infringement of one or more higher-ranking rules of law,
      including Article 85 ( 1 ) and ( 2 ) of the EC Treaty,           The action is based on infringements of Article 71 of the
      Regulation No 17/62 and general legal principles:                Staff Regulations, of Articles 5 , 7, 8 , 9 and 10 of Annex VII
                                                                       to the Staff Regulations and of Article 2 of the general
      The Commission has failed to show that the applicant             provisions implementing Article 7 of Annex VII, as well as a
      acted contrary to Article 85 of the EC Treaty. More              manifest error of assessment. The applicant complains that
      particularly, it has not demonstrated that the applicant         the Commission disregarded the fact that she did not have a
      'participated' in the Cembureau agreement or in any              fixed and settled residence in Brussels and that Madrid was
      concerted practice relating to the exchange of price             still the permanent centre of her interests.
      information .
      Lastly, the applicant contends that the fine imposed on it
      should be cancelled or reduced, since it is not consonant
      with all the charges made against it, those charges are
      not supported by sufficient evidence and the fine
      imposed on it is inadequately reasoned .                         Action brought on 17 February 1995 by SA des Ciments
                                                                       Luxembourgeois against the Commission of the European
I 1 ) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                                       Communities
                                                                                                (Case T-34/95 )
                                                                                                 ( 95/C 101/32 )
                                                                                      (Language of the case: German)
Action brought on 16 February 1995 by Maria Lidia
Lozano Palacios against the Commission of the European
                            Communities                                An action against the European Communities was brought
                                                                       before the Court of First Instance of the European
                          (Case T-33/95 )                              Communities on 17 February 1995 by SA des Ciments
                           ( 95/C 101 /31 )                            Luxembourgeois of Esch-sur-Alzette ( Luxembourg),
                                                                       represented by Joachim Sedemund, Rechtsanwalt, Cologne,
                 (Language of the case: French)                        with an address for service in Luxembourg at the Chambers
                                                                       of Aloyse May, 31 Grand-Rue .
An action against the Commission of the European
Communities was brought before the Court of First                      The applicant claims that the Court should :
Instance of the European Communities on 16 February
1995 by Maria Lidia Lozano Palacios, residing in Brussels,             1 , annul Articles 1 , Article 2 ( 1 ) and (2 ) and Article 9 of
represented by Jean-Noël Louis, of the Brussels Bar, with an                Commission Decision C(94 ) 3077 final of 30 November
address for service in Luxembourg at the office of Fiduciaire               1994 relating to a proceeding under Article 85 of the EC
Myson Sari, 1 Rue Glesener.                                                 Treaty ( Cases IV/33.126 and 33.322 — Cement), in so
                                                                            far as they concern the applicant;
The applicant claims that the Court should :
                                                                       2 , in the alternative, reduce the fine of ECU 1 052 000
— annul the decision of the Commission of 12 April 1994                     imposed on the applicant by Article d of the contested
      in so far as it fixes Brussels as the applicant place of              decision to a reasonable sum;
      recruitment,
                                                                       3 , order the Commission to pay the costs .
— order the defendant to pay the applicant the installation
      allowance and daily subsistence allowance with default
      interest at the annual rate of 8% from the date of               Pleas in law and main arguments adduced in support:
      becoming due until the date of payment, together with
      repayment of her travel expenses and expenditure                 The applicant raises the following procedural objections :
      incurred or to be incurred in the removal of her effects to
      Brussels, and                                                    — the Commission prejudiced the applicant's right to a fair
                                                                            hearing, in that it communicated to it only certain parts
— order the defendant to pay the costs .                                    of the statement of objections,