CELEX: C1997/318/56
Language: en
Date: 1997-10-18 00:00:00
Title: Action brought on 30 July 1997 by Guérin Automobiles against the Commission of the European Communities (Case T-226/97)

C 318/28              1 EN                  Official Journal of the European Communities                                 18 . 10 . 97
2 . declare that the applicant is entitled to have her initial         The applicants claim that the Court should:
    classification reviewed as requested by way of the
    document of 21 June 1996 ;
                                                                       — declare that the Commission has failed to act,
3 . order the European Commission to pay:                              — order the Commission to pay the costs .
    — the difference in the applicant's salary as from the
                                                                       Pleas in law and main arguments adduced in support:
         date when the decision amending the criteria for
         classification began to produce its effects, that is
         5 October 19 95 , together with the accrued                   The applicants complain that the defendant has failed
         interest,                                                     to enforce the judgments of the Court of First Instance
                                                                       of 29 June 1993 ( 1 ) and 18 September 1996 (2 ). Those
    — ECU 1 000 by way of compensation for the non­                    judgments were delivered following a complaint made
         material damage caused, and                                   against certain undertakings alleging that they had
                                                                       colluded to secure exclusive control of the market for
                                                                       Japanese vehicles in France by excluding products of the
     — the costs of these proceedings .                                makes imported by the applicants, and that they had
                                                                       organized the division between them of sub-quotas under
                                                                       a system known as 'voluntary limitation ', eliminating all
Pleas in law and main arguments adduced in support:                    competition .
The pleas in law and main arguments are similar to those               The applicants claim that, following the annulment by the
relied on in Case T-16/97 (').                                         aforementioned judgment of 29 June 1993 of the decision
                                                                       rejecting the complaints, the Commission maintained its
                                                                       position in a letter of 9 March 1994 which formed the
In particular, the applicant considers that the varying of             subject matter of a fresh action for annulment culminating
an   internal    Commission decision as a         result of the        in the judgment of 18 September 1996 , likewise referred
annulment by the Court of previous legislation, where                  to above, by which the decision rejecting the complaints
such legislation was the basis for an erroneous                        was annulled .
classification, constitutes a new fact capable of starting the
period for lodging the complaint running again.
                                                                       In those circumstances, by letter of 11 April 1997, Asia
                                                                       Motor France, Mr Cesbron, EAS and Monin Automobiles
(') OJ C 74, 8 . 3 . 1997, p . 27 .                                    and their liquidators requested the defendant to send to
                                                                       the French importers of the Honda, Mazda, Mitsubishi ,
                                                                       Toyota and Nissan marks a statement of objections, in
                                                                       order that, at the very least, a finding should finally
                                                                        be made as to the existence of the restrictive practice
                                                                       complained of and that steps should be taken to impose
                                                                        penalties in respect of it.
Action brought on 30 July 1997 by Asia Motor France
 and others against the Commission of the European
                             Communities                                Following the expiry of a period of two months, the
                                                                        applicants brought the present action .
                          ( Case T-225/97)
                            ( 97/C 318/55 )                             (') Case T-7/92 ([ 1993 ] ECR 11-669 ).
                                                                        ( 2 ) Case T-387/94 ([ 19961 ECR 11-961 ).
                 (Language of the case: French)
 An action against the Commission of the European
 Communities was brought before the Court of First
 Instance of the European Communities on 30 July 1997                   Action brought on 30 July 1997 by Guerin Automobiles
 by Asia Motor France, the principal place of business of                    against the Commission of the European Communities
 which is at Livange ( Luxembourg ), Jean-Michel Cesbron,                                          Case T-226/97 )
 businessman , trading as JMC Automobiles, residing at
 Livange ( Luxembourg ), Monin Automobiles, the principal                                           ( 97/C 318/56
 place of business of which is at Bourg-de-Peage ( France ),
 and Europe Auto Service ( EAS ), the principal place of                                  (Language of the case: French)
 business of which is at Livange ( Luxembourg ), represented
 by Jean Claude Fourgoux, of the Paris Bar, with an
 address for service in Luxembourg at the Chambers of                   An action against the Commission of the European
 Pierrot Schiltz, 4 Rue Beatrix de Bourbon .                             Communities was brought before the Court of First
 ---pagebreak--- 18 . 10 . 97              EN                  Official Journal of the European Communities                                   C 318/29
Instance of the European Communities on 30 July 1997                     Action brought on 4 August 1997 by Irish Sugar pic
by Guerin Automobiles, the principal place of business of                  against the Commission of the European Communities
which is at Alengon (France ), represented by Jean-Claude
                                                                                                  ( Case T-228/97)
Fourgoux, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue                                                ( 97/C 318/57)
Beatrix de Bourbon .
The applicant claims that the Court should:                                               (Language of the case: English)
— declare that the Commission has failed to act,
                                                                         An action against the Commission of the European
— order the Commission to pay the costs.                                 Communities was brought before the Court of First
                                                                         Instance of the European Communities on 4 August 1997
Pleas in law and main arguments adduced in support:                      by Irish Sugar pic, represented by Alexander Bohlke,
                                                                         Rechtsanwalt, and Scott Crosby, Solicitor, with an address
                                                                         for service in Luxembourg at the Elvinger & Dessoy, 31 ,
The applicant states that on 3 August 1992 it submitted a                rue d'Eich, Luxembourg.
complaint to the Commission contesting the compatibility
of the Volvo dealership contract with the competition
rules under the EC Treaty, in particular Commission
                                                                         The applicant claims that the Court should :
Regulation ( EEC ) No 123/85 of 12 December 1984 on the
application of Article 85 ( 3 ) of the EEC Treaty to certain
categories of motor vehicle distribution and servicing
agreements ( ! ). On 5 May 1994, not having succeeded in                 — annul the Commission Decision C ( 97 ) 1315 final,
obtaining from the Commission a response as to the steps
which it intended to take in relation to the complaint, the
applicant brought an action before the Court of First                    — alternatively, reduce the fine imposed in Article 2, and
Instance of the European Communities for a declaration                        annul Article 3 , third and fourth paragraphs, in so far
of failure to act (2 ). During the course of those                            as they go beyond the scope of the abuses found in
proceedings, the Commission sent a notification under                         Article 1 , points 5 and 6 ,
Article 6 of Regulation No 99/63 , informing the applicant
of the reasons for which it did not propose to give
individual consideration to the complaint, in particular the             — order the Commission to pay the costs.
fact that it was then engaged in considering other similar
cases and that it was necessary to await their outcome .
The      Court     of    First   Instance  considered   that   that
notification constituted a definition of position within the             Pleas in law and main arguments adduced in support:
meaning of Article 175 of the EC Treaty and that there
was therefore no need to give a ruling on the application
for a declaration of failure to act. The applicant points out            The contested decision states that the applicant has
that whilst, in the appeal proceedings brought by it                     infringed Article 86 of the EC Treaty by having recourse
against that judgment ( 3 ), the Court of Justice declared               to methods different from those which condition normal
that a notification under Article 6 does not constitute a                competition in products or services based on traders'
measure open to review, it also stated that it is always                 performance, the effect thereof being that the maintenance
open to the complainant undertaking subsequently to                      of the degree of competition still existing in the market
serve formal notice on the Commission calling upon it to                 and the growth of that competition has been hindered. For
adopt a definitive decision .                                            these infringements, also cited in the decision, a fine of
                                                                         ECU 8 800 000 was imposed on the applicant.
In those circumstances, on 2 and 11 April 1997 the
applicant formally called on the Commission to serve a
statement of objections on Volvo .                                       The applicant pleads misapplication of Article 86 of the
                                                                         EC Treaty. It rejects the Commission's views on joint
The applicant considers that it is now entitled, over two                dominance or dominance in the industrial sugar market
months later and five years after submission of the                      and on alleged abuses on the industrial market and the
                                                                         retail market .
original complaint, to bring the present proceedings for a
declaration of failure to act and that it is justified in so
doing.
                                                                         Furthermore, the applicant pleads misapplication of
(') OJL 15 , 18 . 1 . 1985 , p . 16 .                                    Article 15 (2 ) of Regulation No 17. The fine is too high
( 2 ) Case T- 1 86/94, Guérin Automobiles v. Commission [ 1995 ]         and not in line with previous practice . The fine ignores the
      ECR 11-1756 , ( judgment of 27 June 1995 ).                        constraints of the EC sugar regime, treating the applicant
( 3 ) Case C-282/95 P, Guêrin Automobiles v. Commission [ 1997]          worse than it does producers of industrial products. The
      ECR 1-1531 , ( judgment of 18 March 1997 ).                        Commission is not only in breach of its duty to take into
                                                                         account the regulatory and economic context of the
                                                                         practices called in question but also penalizes, in part,