CELEX: C2000/247/09
Language: en
Date: 2000-08-26 00:00:00
Title: Case C-204/00 P: Appeal brought on 24 May 2000 by Aalborg Portland A/S against the judgment delivered on 15 March 2000 by the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) in Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR SA and Others v Commission of the European Communities

C 247/6                EN                    Official Journal of the European Communities                                       26.8.2000
Appeal brought on 24 May 2000 by Aalborg Portland A/S                   (ii) by not annulling the Decision on the ground that the
against the judgment delivered on 15 March 2000 by the                        Commission had infringed the appellant’s right to a fair
Court of First Instance of the European Communities                           hearing by amending the factual analysis, and hence the
(Fourth Chamber, Extended Composition) in Joined Cases                        legal conclusion, in the Decision from what was set out
T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,                         in the statement of objections;
T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,
T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95,                   (iii) by not annulling the Decision on the ground that the
T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95,                         Commission had infringed Article 253 of the Treaty by
T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 (1)                          failing to give proper reasons for its choice of heads of
Cimenteries CBR SA and Others v Commission of the                             liability and the issue of limitation periods; and
                    European Communities
                        (Case C-204/00 P)                               (iv) by not itself addressing and by failing to give more
                                                                              detailed reasons for its failure to take account of the
                                                                              submissions which the appellant set out in its application
                         (2000/C 247/09)                                      concerning the Commission’s defective reasoning in
                                                                              regard to the objections raised by the appellant in its
                                                                              reply to the statement of objections concerning the issue
An appeal has been brought before the Court of Justice of the                 of limitation periods.
European Communities on 24 May 2000 by Aalborg Portland
A/S, represented by Karen Dyekær-Hansen and Katja Høegh,
of the Copenhagen Bar, against the judgment delivered on
15 March 2000 by the Court of First Instance of the European
Communities (Fourth Chamber, Extended Composition) in                   The Court of First Instance infringed Article 81 of the EC
Joined Cases T-25/95 et al. Cimenteries CBR SA and Others v             Treaty and Articles 3 and 15 of Council Regulation No 17/62
Commission of the European Communities.                                 in that its judgment misapplies the law:
The appellant claims that the Court should:
                                                                        (i)   in so far as the appellant, Aalborg Portland A/S, in
                                                                              accordance with the Decision, is regarded as being
—     (Primarily) Annul the judgment in regard to Aalborg                     responsible for actions performed and conduct displayed
      Portland A/S in so far as that judgment upholds the                     by a separate legal entity;
      Decision (2) with respect to Aalborg Portland A/S;
—     (In the alternative) Annul in part the judgment in regard
      to Aalborg Portland A/S in so far as it upholds the               (ii) in so far as the determination of the fine by the Court of
      Decision with respect to Aalborg Portland A/S;                          First Instance breaches the fundamental requirement,
                                                                              when fines are imposed, that there be compliance with a
                                                                              principle of equality and a principle of proportionality
—     (In the further alternative) Refer the case back to the                 (see also Article 15(2) of Regulation No 17/62, which
      Court of First Instance for fresh consideration;                        provides that fines must be proportionate to the degree
                                                                              of fault and significance of the infringement). The fine
—     Annul the fine, primarily in its entirety, or alternatively             must for that reason be annulled in its entirety, or
      in part;                                                                alternatively in part; and
—     Order the Commission to pay the costs incurred by
      Aalborg Portland A/S in the proceedings before both
                                                                        (iii) in so far as the Court of First Instance upholds
      Community Courts.
                                                                              Articles 2(2)(b), 4(1) and 4(3)(a) of the Decision.
Pleas in law and main arguments
                                                                        The imposition of the fine is contrary to Council Regulation
The Court of First Instance infringed essential procedural              (EEC) No 2988/74 (4) on limitation periods in so far as:
requirements which must be complied with when a fine is
imposed under Regulation No 17/62 (3):
                                                                        (i)   The Court of First Instance unjustifiably assumes that the
(i)   by not annulling the Decision on the ground that the                    agreement lasted until 31 December 1988 by virtue of a
      Commission had infringed the appellant’s right to a fair                legally incorrect classification of the annual exchange of
      hearing through its failure, during the administrative                  competition-neutral price information as a measure for
      procedure, to grant the appellant access to a number of                 implementation of the agreement referred to in Article 1
      potentially exculpatory documents;                                      of the Decision (see Article 2(2)(b) of the Decision); and
 ---pagebreak--- 26.8.2000               EN                      Official Journal of the European Communities                                        C 247/7
(ii) The Court of First Instance unjustifiably finds Aalborg               The Appellant claims that the Court should:
      Portland A/S responsible for the infringements set out in
      Article 4(1) (establishment of the ETF) and Article 4(3)(a)
      (concerted practice designed to withdraw Calcestruzzi as             (a)   set aside or annul the judgment of the Court of First
      a customer from the Greek producers, in particular Titan)                  Instance in so far as it upholds the Decision of the
      of the Decision, alternatively in so far as responsibility                 Commission (2) in respect of Irish Cement Ltd;
      for this is extended beyond 9 September 1986.
                                                                           (b) set aside or annul part of the judgment of the Court of
                                                                                 First Instance in so far as it upholds the Decision of the
(1) OJ C 101 of 22.4.1995, pp 10-20; C 119 of 13.5.1995, pp 13-                  Commission in respect of Irish Cement Ltd;
    26; C 137 of 3.6.1995, pp 23-28, 33 and 34, and C 208 of
    12.8.1995, pp 26 and 27.
(2) Commission Decision 94/815/EC of 30 November 1994 relating             (c)   in lieu thereof:
    to a proceeding under Article 85 of the EC Treaty (Cases IV/33.126
    and 33.322 — Cement) (OJ 1994 L 343 of 30.12.1994, p. 1).
(3) First Regulation implementing Articles 85 and 86 of the Treaty,              (i)   declare that the Decision of the Commission is void;
    OJ English Special Edition 1959-1962, p. 87.
(4) Regulation No 2988/74 of 26 November 1974 concerning limi-
    tation periods in proceedings and the enforcement of sanctions               (ii) make an order cancelling or, in the alternative,
    under the rules of the European Economic Community relating to                     reducing the fine imposed upon the Appellant;
    transport and competition.
                                                                                 (iii) make an order awarding the Appellant its costs
                                                                                       against the Commission.
                                                                           Pleas in law and main arguments
                                                                           Prior to the oral procedure the Court of First Instance ordered
Appeal brought on 24 May 2000 by Irish Cement Ltd                          the Commission to comply with two measures of organisation
against the judgment delivered on 15 March 2000 by the                     of procedure, to enable the Appellants to have access to the
Court of First Instance of the European Communities                        documents which had not been disclosed to them during
(Fourth Chamber, Extended Composition) in joined cases                     the administrative procedure. The Commission ultimately
T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95,                      complied with these measures.
T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95,
T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95,
T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95,                      The Appellant contends that:
T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95,
T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95,
T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 (1)                       (a)   The Court of First Instance does not have competence to
between Cimenteries CBR SA and others and the Com-                               attempt to retrospectively repair the defective procedures
            mission of the European Communities                                  of the Commission and, furthermore, was not empowered
                                                                                 to conclude that the outcome of the administrative
                                                                                 procedure could not have been different if access to the
                         (Case C-205/00 P)
                                                                                 file had been given at the appropriate time;
                          (2000/C 247/10)
                                                                           (b) By requiring submissions on how the documents made
                                                                                 available might have affected the position of the Appellant
An appeal against the judgment delivered on 15 March by the                      and then adjudicating on those submissions the Court of
Court of First Instance of the European Communities (Fourth                      First Instance committed a breach of procedure;
Chamber, Extended Composition) in joined cases T-25/95 etc.
between Cimenteries CBR SA and others and the Commission
of the European Communities, was brought before the Court                  (c)   The Court of First Instance made a serious error of
of Justice of the European Communities on 24 May 2000 by                         assessment when it found that the Appellants’ access to
Irish Cement Ltd, a company incorporated under Irish law,                        the investigation file was equal to that which they should
established in Dublin, represented by Paul Sreenan, SC, and                      have had during the administrative procedure. Arising
John Glackin, Solicitor, of Gerrard, Scallan & O’Brien, Solici-                  from this manifest error of assessment, the Court of First
tors, Dublin, with an address for service in Luxembourg at the                   Instance’s subsequent approach to the assessment of the
Chambers of Kramer Associés & Clifford Chance, 6 rue                             effect of the infringements on the rights of the defence is
Heinrich Heine.                                                                  fundamentally flawed.