CELEX: C1995/119/36
Language: en
Date: 1995-05-13 00:00:00
Title: Action brought on 21 February 1995 by Unicem SpA against the Commission of the European Communities (Case T-50/95)

13 . 5 . 95            EN                  Official Journal of the European Communities                                  No C 119/15
— in the alternative, set aside or at least reduce the fines           The applicant claims that the Court should:
      imposed pursuant to Articles 9.22 and 10.3 of the
      Decision,                                                        — annual the Decision of the Commission 94/815/EC
                                                                            (IV/33.126 and 33.322 ) of 30 November 1994 relating
— order the Commission to pay the costs .                                  to a proceeding under Article 85 of the EC Treaty 0 ), at
                                                                           least in so far as concerns the applicant,
Pleas in law and main arguments adduced in support:
                                                                       — in the alternative, annul or reduce the fine imposed on
The applicant seeks annulment of the Decision on the                       it,
following grounds:
                                                                       — in any event, order the defendant to pay the costs of the
1 . Breach of the right to a fair hearing by reason of                     proceedings and to reimburse to the applicant the costs
      procedural irregularities committed both at the time of              and interest incurred in respect of the security lodged,
      adoption of the international complaints and severance               either in their entirety or in so far as they relate to the
      of the national complaints .                                         fine, if reduced .
2 . Breach of Article 85 of the EC Treaty resulting from               Pleas in law and main arguments adduced in support:
      manifest errors of assessment relating both to the global
      context of the alleged agreement and the definition of           The applicant relies on the following grounds in support of
      the market at issue .                                            its application:
3 . Breach of Article 85 of the EC Treaty in so far as the               I. Breach of essential procedural requirements :
      Commission committed manifest errors of assessment in
      respect of the infringements found against the applicant                ( a ) In the stages prior to the adoption of the
      relating to :                                                                 Decision :
      — involvement in the 'Cembureau principle',                                   — failure to notify to the applicant the documents
                                                                                        on which the Commission based its Statement
      — involvement in the ' Greek problem',                                            of Objections,
      — involvement on the Export Committees,                                       — failure to identify to whom the Statement of
                                                                                        Objections is addressed,
      — involvement in bilateral application measures,
                                                                                    — breach of the principle of immediacy;
      — involvement on the White Cement Committee .
                                                                              ( b ) In the adoption of the Decision:
In the alternative, the applicant seeks:
                                                                                    — formulation of new objections and
1 , annulment of the fines for breach of Article 190 of the
                                                                                        amendment of previous ones; inconsistency
      EC Treaty, Article 15 ( 2 ) of Regulation No 17/62 and                            with a previous decision,
      Regulation ( EEC ) No 2988/74;
                                                                                    — infringement of the applicant's right of
2 , reduction of the amount of the fines on the ground of                               defence; the new objections raised which
      infringement of the principles of proportionality,                                were not contained in the Statement of
      protection of legitimate expectations and non­                                    Objections,
      discrimination .
                                                                                    — erroneous authentication of the Decision,
                                                                                    — use of statements submitted by the parties in
                                                                                        their defence to support arguments against
                                                                                        them and against other parties which had not
Action brought on 21 February 1995 by Unicem SpA                                        been given the opportunity to reply to them,
   against the Commission of the European Communities
                          ( Case T-50/95                                            — Decision addressed to the wrong persons:
                            ( 95/C 119/36 )                                             breach of the principle of equal treatment and
                                                                                        of the applicant's rights of defence,
                 (Language of the case: Italian)                                    — failure to specify the duration of the
                                                                                        infringements alleged in the Decision.
An action against the Commission of the European
Communities was brought before the Court of First                       II. Insufficient statement of reasons, breach of rules of law
Instance of the European Communities on 21 February                           and erroneous assessment of the evidence as regards:
1995 by Unicem SpA, whose registered office is in Turin
( Italy), represented by Grande Stevens, of the Turin Bar,                    ( a ) the definition of the relevant market;
Magrone Osti of the Rome Bar, and Gandini, of the Turin
Bar, with an address for service in Luxembourg at the                         ( b) the alleged 'Cembureau Agreement' limiting
Chambers of Marc Loesch, 11 Rue Goethe.                                             national markets;
 ---pagebreak--- No C 119/16             EN                Official Journal of the European Communities                                    13 . 5 . 95
      (c ) the exchange of information on prices;                    — in the alternative, annul Article 9 of that decision in so
                                                                         far as it imposes the fine on the applicant,
      (d ) the agreement to set up a 'European Task
            Force ';                                                 — reduce the amount of the fine imposed on the
                                                                         applicant;
      (e ) the agreement to set up a 'Joint Trading
            Company';
                                                                     — order the Commission to pay the costs,
      ( f) the agreement and certain concerted practices
            adopted to protect the Italian market;                   — order the Commission to reimburse the whole of the
                                                                         costs incurred by the applicant in respect of the
      (g) the alleged concerted practices within the                     administrative procedure,
            European Cement Export Committee ( ECEC).
                                                                     — order the Commission to reimburse the whole of the
III. As regards the fine, the applicant claims that:                     costs incurred in providing a security for the payment of
                                                                         the fine payable under the Decision.
      (a ) Unicem did not possess the degree of knowledge
            attributed to it by the Commission: its conduct
            could not have been 'intentional';                       Pleas in law and main arguments adduced in support:
      ( b ) the time for prosecuting some of the infringements       The applicant relies on the following grounds in support of
            imputed to Unicem had expired; others were not           its application:
            charged against Unicem in the Statement of
            Objections; some could not have been of the              1 . Serious infringement of the rights of the defence and of
            alleged duration;                                             procedural rules as follows:
      (c ) the infringements allegedly committed by Unicem                ( a ) inconsistency between the charges and the
            are much less serious than the Commission                           Decision;
            considers; there has been a breach of the principle
            of proportionality and of the principle of equal              ( b ) insufficiently specific and incomplete charges;
            treatment;
      ( d ) the fine has been calculated on various erroneous             (c ) failure to give the applicant a reasonable period in
            bases, which creates substantial disparity in                       which to submit its observations in its defence;
            treatment .
                                                                          ( d ) failure to forward to the Consultative Committee
(!) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                       essential and relevant parts of the draft Decision.
                                                                     2 . Infringement of Article 85 ( 1 ) of the EC Treaty as a
                                                                         result of erroneous or inadequate assessment and legal
                                                                         characterization of the facts .
Action brought on 22 February 1995 by Fratelli Buzzi SpA
  against the Commission of the European Communities                 3 . Breach of the principle personal liability.
                          Case T-51/95 )
                                                                    4. Breach of the principle ne bis in idem.
                          ( 95/C 119/37)
                                                                    5 . Breach of the principle in dubio pro reo.
                 (Language of the case: ltalian)
                                                                     6. Infringement of Articles 1 ( b ) and 2 ( 3 ) of Council
An action against the Commission of the European                         Regulation ( EEC ) No 2988/74 of 26 November
Communities was brought before the Court of First                         1974 .
Instance of the European Communities on 22 February
1995 by Fratelli Buzzi SpA, whose registered office is at           7. Infringement of Article 15 ( 2 ) of Council Regulation
Casale Monferrato (Italy), represented by Messrs Brosio                  No 17/62 of 6 February 1962 inasmuch as:
and Pavesio, of the Turin Bar, Dr Crescenza, of the Rome
Bar, and Dr. Ceraolo, of the Turin Bar, with an address for
service in Luxembourg at the Chambers of Mr Faltz,                       (a ) sales not relating to the preceding financial year
                                                                                were taken into account;
Avocat, 6 Rue Heine .
                                                                         ( b) the subjective element was not considered;
The applicant claims that the Court should:
— annul in whole or in part the Decision of the                          (c ) the duration and seriousness of the infringement
    Commission 94/815/EC (IV/33.126 and 33.322 —                                were incorrectly assessed.
    Cement) ( a ) of 30 November 1994 in so far as concerns
    the applicant,                                                  8 . Breach of the principle of equal treatment.