CELEX: C2002/202/02
Language: en
Date: 2002-08-24 00:00:00
Title: Case C-189/02 P: Appeal brought on 21 May 2002 by Dansk Rørindustri A/S against the judgment delivered on 20 March 2002 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-21/99 Dansk Rørindustri A/S v Commission of the European Communities

24.8.2002                EN                          Official Journal of the European Communities                                          C 202/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                     ORDER OF THE COURT                                      26 May 1989 on the accession of the Kingdom of Spain and
                                                                             the Portuguese Republic (OJ 1989 L 285, p. 1) and the
                                                                             Convention of 29 November 1996 on the accession of the
                           (First Chamber)                                   Republic of Austria, the Republic of Finland and the Kingdom
                                                                             of Sweden (OJ 1997 C 15, p. 1) — the Court (First Chamber),
                                                                             composed of: P. Jann, President of the Chamber, M. Wathelet
                          of 22 March 2002
                                                                             and A. Rosas, Judges; S. Alber, Advocate General; R. Grass,
                                                                             Administrator, for the Registrar, has made an order the
in Case C-69/02 (reference for a preliminary ruling from                     operative part of which is as follows:
the Tribunal de Paix, Luxembourg): Tilly Reichling v Léon
                             Wampach (1)                                     The Court of Justice of the European Communities manifestly has no
                                                                             jurisdiction to reply to the question referred to it by the Tribunal de
                                                                             Paix, Luxembourg, by judgment of 28 February 2002.
(Brussels Convention — Protocol concerning the interpret-
ation by the Court of Justice of the Convention — National
courts which may request the Court of Justice to give                        (1) OJ 2002 C 118.
preliminary rulings — Manifest lack of jurisdiction of the
                                Court)
                           (2002/C 202/01)
                     (Language of the case: French)
                                                                             Appeal brought on 21 May 2002 by Dansk Rørindustri
(Provisional translation; the definitive translation will be published       A/S against the judgment delivered on 20 March 2002 by
                    in the European Court Reports)                           the Court of First Instance of the European Communities
                                                                             (Fourth Chamber) in Case T-21/99 (1) Dansk Rørindustri
                                                                                    A/S v Commission of the European Communities
In Case C-69/02: reference to the Court from the Tribunal de                                           (Case C-189/02 P)
Paix (Luxembourg) for a preliminary ruling in the proceedings
pending before that court between Tilly Reichling and Léon                                              (2002/C 202/02)
Wampach, intervener: Établissement d’assurances contre la
vieillesse et l’invalidité — on the interpretation of the Brussels
Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters (OJ                 An appeal has been brought before the Court of Justice of the
1972 L 299, 32), as amended by the Convention of Accession                   European Communities on 21 May 2002 by Dansk Rørindustri
of 9 October 1978 of the Kingdom of Denmark, of Ireland                      A/S, represented by K. Dyekjær-Hansen, K. Høegh and
and of the United Kingdom of Great Britain and Northern                      C.K. Lauridsen, against the judgment delivered on 20 March
Ireland (OJ 1978 L 304, p. 1 — amended text — p. 77), the                    2002 by the Court of First Instance of the European Commu-
Convention of 25 October 1982 on the accession of the                        nities (Fourth Chamber) in Case T-21/99 Dansk Rørindustri
Hellenic Republic (OJ 1982 L 388, p. 1), the Convention of                   A/S v Commission of the European Communities.
 ---pagebreak--- C 202/2                 EN                      Official Journal of the European Communities                                        24.8.2002
The appellant claims that the Court should:                                      It is not denied that the wording of Article 15(2) of
                                                                                 Regulation No 17 does not contain an express limit on
—     Amend Article 3 of Commission Decision 1999/60/EC                          turnover within the EU. However, an understanding of
      of 21 October 1998 relating to a proceeding under                          the meaning of that relevant turnover has taken form
      [former] Article 85 of the EC Treaty (Case No IV/35.691/                   over the course of the years to such a degree that this
      E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1) in                  understanding has assumed the character of a customary
      such a way as to reduce the fine of ECU 1 475 000 im-                      practice which cannot, in the absence of additional
      posed on the appellant;                                                    factors, be amended with retroactive effect.
—     In the alternative, in relation to the first head of claim: set      —     Formal error: even though the Court of Justice might
      aside the judgment of the Court of First Instance and                      uphold the Court of First Instance’s acceptance of the
      remit the case for further consideration of the question                   manner in which the Commission applied the guidelines,
      of the level of the fine;                                                  the Court of First Instance erred in failing to accept that
                                                                                 application of those guidelines with retroactive effect
—     Order the Commission to pay the costs incurred by                          amounts to an infringement of the audi alteram partem
      Dansk Rørindustri A/S in the proceedings before the two                    principle inasmuch as the appellant did not have any
      Community Courts.                                                          opportunity to state its views on this amended practice.
                                                                           (1) OJ 1999 C 100, p. 19.
Pleas in law and main arguments                                            (2) First Council Regulation implementing Articles 85 and 86 of the
                                                                               Treaty, OJ English Special Edition 1959-1962, p. 87.
Misconstruction of the law, consisting in an endorsement of                (3) Commission Information of January 1998 on Guidelines on the
                                                                               Method of setting Fines imposed pursuant to Article 15(2) of
the Commission’s setting of the fine, by which the Court of                    Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998
First Instance                                                                 C 9, p. 3).
—     set aside Regulation No 17 (2) in conjunction with the
      generally applicable principles of proportionality and
      equality by imposing on Dansk Rørindustri a fine which,
      by virtue of its relative amount, is disproportionate to the
      infringement committed;
                                                                           Appeal brought on 31 May 2002 by (1) Isoplus Fernwär-
—     set aside Regulation No 17 in conjunction with the                   metechnik Vertriebsgesellschaft mbH, (2) Isoplus
      general principle of protection of legitimate expectations           Fernwärmetechnik Gesellschaft mbH and (3) Isoplus
      by applying principles governing the imposition of                   Fernwärmetechnik GmbH against the judgment delivered
      fines (3) which were substantially altered in relation to the        on 20 March 2002 by the Fourth Chamber of the Court
      principles in force at the time of the unlawful conduct              of First Instance of the European Communities in Case
      and when the case was brought: it is not in accordance               T-9/99 between HFB Holding für Fernwärmetechnik
      with the purpose behind the Treaty and Regulation No 17              Beteiligungsgesellschaft mbH & Co. KG, HFB Holding für
      to apply guidelines on the level of fines that are drafted           Fernwärmtechnik Beteiligungsgesellschaft mbH, Verwal-
      in such a way that the intended and mandatory gradation              tungsgesellschaft, Isoplus Fernwärmetechnik Vertriebs-
      has no value or meaning whatsoever for small undertak-               gesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
      ings. This, in the first place, gives rise to blatant and            mbH und Isoplus Fernwärmetechnik GmbH and the
      unreasonable discrimination against smaller undertakings                       Commission of the European Communities
      and, second, has the result that the intended and manda-
      tory gradation according to, inter alia, degree of guilt and                                 (Case C-202/02 P)
      passage of time no longer serves any purpose and is
      rendered subordinate to a determination calculated in an                                      (2002/C 202/03)
      entirely automatic manner.
      The fact that the Court of First Instance reduced the factor
      for the duration of the infringement without that having             An appeal against the judgment delivered on 20 March 2002
      any significance whatsoever demonstrates that a gra-                 by the Fourth Chamber of the Court of First Instance of the
      dation of the fine imposed on Dansk Rørindustri in line              European Communities in Case T-9/99 between HFB Holding
      with the scope of the infringement did not and cannot                für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG,
      take place if the guidelines are applied schematically               HFB Holding für Fernwärmtechnik Beteiligungsgesellschaft
      without any account whatever being taken of the size of              mbH, Verwaltungsgesellschaft, Isoplus Fernwärmetechnik Ver-
      the undertaking.                                                     triebsgesellschaft mbH, Isoplus Fernwärmetechnik Gesellschaft
                                                                           mbH und Isoplus Fernwärmetechnik GmbH and the Com-
      It is grotesque that ABB, as the instigator, had its fine            mission of the European Communities was brought before the
      reduced as a result of cooperation consisting to a large             Court of Justice of the European Communities on 31 May
      extent in implicating the other cartel participants and              2002 by Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH,
      exaggerating their participation, where several of the               Isoplus Fernwärmetechnik Gesellschaft mbH and Isoplus
      other undertakings involved at ABB’s instigation and                 Fernwärmetechnik GmbH, represented by P. Krömer and
      retained in the cartel were forced after the Cartel case to          F. Nusterer, Rechtsanwälte, with an address for service in
      withdraw from the market.                                            Luxembourg.