CELEX: C1998/234/57
Language: en
Date: 1998-07-25 00:00:00
Title: Action brought on 21 April 1998 by Van Den Bergh Foods Limited against the Commission of the European Communities (Case T-65/98)

C 234/28             EN                 Official Journal of the European Communities                                   25.7.98
Foundation, established at Long Hanborough (United                 navigation calculations that the crew would otherwise
Kingdom), Irish Agri-Food Development Ltd, established             have to handle.
at Dublin, represented by Mia Declercq-Devisch and Kurt
Haegeman, of the Brussels Bar, with an address for service         By the contested decision the Commission approved
in Luxembourg at the chambers of Marc Loesch, 11 Rue               individual aid granted by the French authorities to the
Goethe, v Commission of the European Communities                   French company Sextant, acting as project manager for
(Agent: Marie-JoseÂe Jonczy) Ð application for interim             research and development of a new FMS adapted to
measures in relation to a Commission decision of                   Airbus aircraft. Sextant is a subsidiary of Thomson CSF
17 March 1998 declaring inadmissible a tender submitted            and Aerospatiale.
by the applicant in response to an invitation to tender for
a project financed under the TACIS programme (Project
FDRUS 9701, entitled: Russia: Promoting Co-operative              The applicant is of the opinion that the Commission has
Ventures by Independent Farmers') Ð the President of the           infringed Article 92(3) of the EC Treaty by making an
Court of First Instance made an order on 26 May 1998,              incorrect assessment as to the precompetitive nature of the
the operative part of which is as follows:                         project and as to the incentive effect of the aid. Contrary
                                                                   to what the Commission asserts, the applicant believes
                                                                   that the aid should not have been approved under the
1. The application for interim measures is dismissed.              Framework.
                                                                   The applicant further contends that, because of the
2. The decision as to costs is reserved.
                                                                   complexity of the market, the Commission should have
                                                                   opened the procedure under Article 93(2) of the EC
                                                                   Treaty. By failing to do so, the Commission has infringed
                                                                   essential procedural requirements and has thus deprived
                                                                   the applicant of the opportunity to submit its comments
                                                                   on the proposed aid. If a procedure under Article 93(2)
                                                                   had been opened, the applicant would have submitted its
Action brought on 6 April 1998 by Honeywell Inc. against
                                                                   observations. The applicant argues that the Commission
      the Commission of the European Communities
                                                                   would not have concluded that the aid was compatible
                       (Case T-59/98)                              with the Treaty if it had been duly informed of all the
                                                                   pertinent facts and implications through an Article 93(2)
                        (98/C 234/56)
                                                                   procedure.
              (Language of the case: English)                      Finally, the applicant submits that Article 190 of the EC
                                                                   Treaty has been infringed in that the Commission gave
                                                                   insufficient reasons for the contested decision.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 6 April 1998
by Honeywell Inc., represented by Bernard van de Walle
de Ghelcke, with an address for service in Luxembourg at
the Offices of Loesch & Wolter, 11, rue Goethe.
                                                                   Action brought on 21 April 1998 by Van Den Bergh
                                                                   Foods Limited against the Commission of the European
The applicant claims that the Court should:                                                 Communities
                                                                                          (Case T-65/98)
Ð annul Decision No. N584/97 of the Commission                                             (98/C 234/57)
    concerning aid to Sextant Avionique for the
    development of a new flight management system                                 (Language of the case: English)
    adapted to Airbus aircraft, communicated to the
    applicant by letter D/50515 of 5 February 1998; and
                                                                   An action against the Commission of the European
                                                                   Communities was brought before the Court of First
Ð order the Commission to pay the costs.                           Instance of the European Communities on 21 April 1998
                                                                   by Van Den Bergh Foods Limited, represented by Malcolm
                                                                   Nicholson and Michael Rowe, with an address for service
Pleas in law and main arguments adduced in support:                in Luxembourg at the Chambers of Elvinger, Hoss &
                                                                   Prussen, 2, place Winston Churchill.
The applicant, a company incorporated under law of the
United States of America, is a leading supplier of avionics        The applicant claims that the Court should:
systems and products for the commercial, military and
space market, who developed the industry's first flight            Ð declare the Commission decision of 11 March 1998
management system (FMS'). The FMS is the centrepiece                  relating to a proceeding under Articles 85 and 86 of
of an aircraft, able to control the flight from take-off all           the EC Treaty (Case Nos. IV/34.073, IV/35.436 and
the way through to landing, performing all of the complex              IV/34.395) void and annul it in its entirety;
 ---pagebreak--- 25.7.98               EN                Official Journal of the European Communities                                 C 234/29
Ð in the alternative, annul those parts of the decision            Ð Errors of law in the application of Article 86,
    that the Court finds erroneous or unsafe; and                      inasmuch as cabinet provisions on a free-on-loan basis
                                                                       do, in the circumstances of this industry, represent the
                                                                       normal means by which suppliers of impulse ice cream
Ð order the Commission to pay the applicant's costs.                   compete and should be objectively justified.
Pleas in law and main arguments adduced in support:                Ð Errors of law in the failure to respect property rights
                                                                       as required by general principles of law and under
The application concerns the prohibition of the practice of            Article 222 of the EC Treaty. HB submits in this
freezer cabinet exclusivity as adopted by the applicant Van            regard that the contested decision seeks to deprive it in
Den Bergh Foods Ltd (formerly HB and here referred to as               whole or substantial part of the value and enjoyment
such), a subsidiary of the Unilever N.V./PLC group, in the             of its investments in cabinets, which have no purpose
market for wrapped single-portion ice cream intended for               other than to support the storage and sale of the HB's
immediate consumption (impulse ice cream') in the                     ice creams at point of sale, so that to prohibit the
Republic of Ireland. Freezer-cabinet exclusivity involves              exclusivity clause is to deprive the applicant of rights
the provision by an ice-cream supplier of freezer cabinets,            representing the normal incidents of its cabinet
which are paid for and maintained by the supplier, to                  ownership.
retailers to be used exclusively for the sale of the impulse
ice-cream products of that supplier.                               Finally, the applicant submits that the contested decision
                                                                   has been taken in breach of Article 190 of the EC Treaty,
                                                                   and of a number of fundamental principles of Community
The decision that whenever the applicant supplies to a
                                                                   law, such as protection of legitimate expectations,
retailer one or more HB owned and maintained cabinets
                                                                   subsidiarity, legal certainty, proportionality and equal
for the stocking of impulse ice cream and that retailer
                                                                   treatment.
does not also have his own cabinet or one supplied by a
third-party ice-cream manufacturer, the exclusivity term of
the agreement under which the cabinet is supplied
infringes Article 85(1), and the inducement to the retailer
to accept the supply by HB of a cabinet (subject to a
condition of exclusivity) and its maintenance without
direct charges infringes Article 86. Moreover, the request         Action brought on 29 April 1998 by Luc Verheyden
for an exemption of the exclusivity term under                       against the Commission of the European Communities
Article 85(3) is rejected.                                                                (Case T-71/98)
                                                                                           (98/C 234/58)
The applicant's pleas in law and main arguments can be
summarized as follows:
                                                                                  (Language of the case: French)
Ð Manifest errors of assessment of facts, leading to
                                                                   An action against the Commission of the European
    errors of law. It is submitted on this point that the
                                                                   Communities was brought before the Court of First
    Commission is wrong to attribute a foreclosing effect
                                                                   Instance of the European Communities on 29 April 1998
    to agreements terminable at will by deeming them to
                                                                   by Luc Verheyden, residing at Angera (Italy), represented
    give rise to a so-called de facto tie', and by
                                                                   by Eric Boigelot, of the Brussels Bar, with an address for
    concluding on the basis of HB's popularity as a
                                                                   service in Luxembourg at the Chambers of Louis Schiltz, 2
    supplier of impulse ice cream that retail outlets are in
                                                                   Rue du Fort Rheinsheim.
    consequence deprived of the opportunity to replace
    freezer cabinets supplied by HB or to install further
    cabinets alongside the HB cabinet. On the contrary,            The applicant claims that the Court should:
    the number of retail outlets (even in the smallest size
    category) with two or more cabinets is substantial and         Ð annul the decision of 10 July 1997, signed by Mr
    has been increasing over time.                                     Holtbecker, refusing the applicant any compensation
                                                                       for the use of his personal vehicle in the performance
Ð Errors of law in the application of Article 85(1).                   of his duties or on the occasion thereof;
    According to the applicant, the basic form of cabinet
    agreement does not involve a restriction of                    Ð annul the decision implicitly rejecting the complaint
    competition and the exclusivity' provision similarly              submitted by the applicant against that refusal on
    falls outside that provision. Secondly, Article 85(1)              29 September 1997, which was registered as having
    will only apply to the HB cabinet agreements if they               been received on that date;
    foreclose the market to new entrants or to those
    seeking to build market share to a degree and extent
    inconsistent with non-applicability of the prohibition         Ð order the defendant to pay compensation amounting
    under Article 85(1), which should not be the case.                 to LIT 74 254 000 together with compensatory
                                                                       interest at the annual rate of 8 %, to be calculated in
                                                                       respect of the period from 24 March until the date of
Ð Errors of law in the assessment under Article 85(3).                 payment in full;