CELEX: C1998/299/36
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 29 July 1998 by Metsä-Serla Sales OY (formerly Finnish Board Mills Association - Finnboard) against the judgment delivered on 14 May 1998 by the Third Chamber (extended composition) of the Court of First Instance of the European Communities in Case T-338/94 Finnish Board Mills Association - Finnboard and the Commission of the European Communities (Case C-298/98 P)

26.9.98               EN                Official Journal of the European Communities                                         C 299/23
(c)  whether the Court of First Instance was right to              (c)  even if the Court of First Instance was right to hold
     conclude that, in exercise of that choice, the                     that the Commission had a choice as to whether to
     Commission was entitled to address the Cartonboard                 address the Cartonboard Decision to SCA Holding
     Decision to SCA Holding Ltd.                                       Ltd (or to another legal entity), it was wrong not to
                                                                        take the existence of this choice into account in
                                                                        reviewing the level of fines imposed on SCA Holding
In summary, SCA Holding Ltd's position on these issues is               Ltd. To make SCA Holding Ltd exclusively
as follows:                                                             responsible for the infringement when the
                                                                        Cartonboard Decision could also have been addressed
                                                                        to, and fines imposed (in whole or in part) on, legal
(a) an issue of succession arises in circumstances where                entities belonging to other corporate groups was
     an infringement is committed by an undertaking                     unfair, disproportionate and did not serve to achieve
     which, notwithstanding one or more changes of                      any deterrent effect.
     ownership during or after the period of infringement,
     maintains functional and economic continuity
     throughout the period of infringement and up until            (1) OJ C 386, 31.12.1994, p. 15.
     the date of the Decision, continues to exist in its           (2) OJ L 243, 19.9.1994, p. 1.
     essential form at the date of the Decision and has            (3) Official Journal, English Special Edition, 1962, p. 87.
     legal personality at the date of the Decision. The
     Court of First Instance's finding that there was no
     issue of succession in this case is based on deficient
     reasoning and is contrary to legal principle and the
     jurisprudence of the European Courts;
(b) The Court of First Instance erred in law in                    Appeal brought on 29 July 1998 by Metsä-Serla Sales OY
     concluding that the Commission was entitled to                (formerly Finnish Board Mills Association Ð Finnboard)
     choose, as between entities belonging to different            against the judgment delivered on 14 May 1998 by the
     corporate groups, which entity should be the                  Third Chamber (extended composition) of the Court of
     addressee of the Cartonboard Decision;                        First Instance of the European Communities in Case
                                                                   T-338/94 Finnish Board Mills Association Ð Finnboard
                                                                       and the Commission of the European Communities
(c)  the Court of First Instance's consideration of the
                                                                                           (Case C-298/98 P)
     question whether the Commission exercised that
     choice correctly was inadequate. Even if (which is                                       (98/C 299/36)
     denied) the Commission was entitled to choose which
     entity from different corporate groups to make the
     addressee of the Cartonboard Decision, the Court of
     First Instance erred in law in finding that the               An appeal against the judgment delivered on 14 May
     Commission's choice could not validly be called into          1998 by the Third Chamber (extended composition) of the
     question.                                                     Court of First Instance of the European Communities in
                                                                   Case T-338/94 between Finnish Board Mills Association
                                                                   Ð Finnboard and the Commission of the European
Fines:                                                             Communities was brought before the Court of Justice of
                                                                   the European Communities on 29 July 1998 by Metsä-
                                                                   Serla Sales OY (formerly Finnish Board Mills Association
If the Court considers that the Court of First Instance did
                                                                   Ð Finnboard), represented by Hans Hellmann, Am
not err in holding that SCA Holding Ltd was the correct
                                                                   Morsdorfer Hof 16, D-50933 Cologne, and Hans-Joachim
(or a correct) address of the Cartonboard Decision, SCA
                                                                   Hellmann LL.M., Schilling, Zutt & Anschütz, Otto-Beck-
Holding Ltd submits that the Court of First Instance erred
                                                                   Straûe 42, D-68165 Mannheim, Rechtsanwälte, with an
in the application of its unlimited jurisdiction to review
                                                                   address for service in Luxembourg at the Chambers of
the fine imposed on it by the Commission, contrary to
                                                                   Loesch & Wolter, 11 Rue Goethe, B.P. 1107, L-1011
Article 172 of the Treaty and Article 17 of Council
                                                                   Luxembourg.
Regulation No 17 (3). SCA Holding Ltd makes three pleas
in this part of its appeal:
                                                                   The appellant claims that the Court should:
(a) the Court of First Instance erred in law in finding
     that the position adopted by SCA Holding Ltd during
     the Commission's administrative procedure did not
     justify a reduction of the fine imposed on it;                1. Set aside the judgment of the Court of First Instance
                                                                       of 14 May 1998 in Case T-338/94 Finnboard v.
                                                                       Commission, save and except paragraph 1 of the
(b) the Court of First Instance erred in law in finding                operative part thereof allowing the application in
     that the defective reasoning of the Decision in                   regard to the declaration of nullity of Article 2(1) to
     relation to the fines imposed did not justify the                 (4) of the Decision, and give final judgment in the case
     annulment or reduction of SCA Holding Ltd's fine;                 as follows.
 ---pagebreak--- C 299/24              EN                Official Journal of the European Communities                                  26.9.98
    1. The Commission Decision of 13 July 1994 relating            Appeal brought on 31 July 1998 by CPL Imperial 2 SpA
        to a proceeding under Article 85 of the Treaty             and Unifrigo Gadus Srl against the judgment delivered on
        (IV/C 33.833 Ð Cartonboard) notified to the                9 June 1998 by the Third Chamber of the Court of First
        appellant on 5 August 1994 and published in the            Instance of the European Communities in Joined Cases
        Official Journal of the European Communities on            T-10/97 and T-11/97 between Unifrigo Gadus Srl and
        19 September 1998 is void in so far as it concerns         CPL Imperial 2 SpA and the Commission of the European
        the appellant,                                                                      Communities
                                                                                        (Case C-299/98 P)
        or, in the alternative,
                                                                                           (98/C 299/37)
        the fine is reduced.
                                                                   An appeal against the judgment delivered on 9 June 1998
    2. Order the Commission to pay the costs of the                by the Third Chamber of the Court of First Instance of the
        proceedings.                                               European Communities in Joined Cases T-10/97 and T-11/
                                                                   97 Unifrigo Gadus Srl and CPL Imperial 2 SpA v. the
2. In the further alternative:                                     Commission of the European Communities was brought
                                                                   before the Court of Justice of the European Communities
                                                                   on 31 July 1998 by CPL Imperial 2 SpA, established in
    set aside the contested judgment and refer the case            Pescara (Italy), and Unifrigo Gadus Srl, established in
    back to the Court of First Instance for judgment.              Naples (Italy), represented by Giuseppe Celona, of the
                                                                   Milan Bar, with an address for service in Luxembourg at
Pleas in law and main arguments adduced in support:                the Chambers of Georges Margue, 20 Rue Philippe II.
Ð Infringement of the obligation to give reasons for               The appellant claims that the Court should:
    decisions in individual cases under Article 190 of the
    EC Treaty: the Court of First Instance found an                Ð allow the appeal,
    infringement of the obligation to state reasons in
    regard to the criteria for determining and calculating
                                                                   Ð set aside the judgment delivered on 9 June 1998 by the
    the amount of the fine, but did not reach the
                                                                       Third Chamber of the Court of First Instance in
    mandatory legal conclusion that the decision was void.
                                                                       Joined Cases T-10/97 and T-11/97, and consequently
    The Court thereby wrongly laid down legal rules for
                                                                       annul the Commission's decision of 8 October 1996,
    the future without applying them in the case before it.
    As it is a matter of the objective application of the
    law, no significance can be attributed to the                      in the alternative:
    Commission's subjective knowledge at the time when
    it adopted its decision,                                       Ð declare that that decision does not have the effect of
                                                                       establishing whether or not the conditions for waiver
Ð error in exercising discretion when interpreting and                 of the right to recover post-clearance duties in
    applying Article 15(2) of Council Regulation No 17:                question were fulfilled, which it is for the national
    the grant of two-thirds reductions in the fine for an              court to decide,
    admission' or one third for a failure to contest' the
    essential allegations is devoid of any legal basis and             in any event
    infringes fundamental rights of defence of the parties
    concerned,
                                                                   Ð order the Commission to pay the costs of the appeal.
in the alternative:
                                                                   Pleas in law and main arguments adduced in support:
Ð when interpreting and applying Article 15(2) of                  The judgment of the Court of First Instance is challenged
    Regulation No 17 in regard to the turnover relevant            by CPL Imperial 2 SpA and Unifrigo Gadus Srl on the
    for calculating the fines the Court included the               following grounds:
    turnover of third party undertakings and thereby erred
    in law,
                                                                   Ð breach of the rights of the defence, since the Court of
                                                                       First Instance found that it was not necessary for the
Ð error of law in applying Article 15(2) of Regulation                 Commission to ascertain whether the case submitted
    No 17, having regard to the absence of effects of price            to it contained all the information necessary for
    collusion on the market,                                           consideration of the case, especially since the parties
                                                                       concerned played absolutely no part in the
Ð error of appraisal and discrimination in arbitrarily                 proceedings,
    rounding up the fine after applying the calculation
    method under Article 15(2) of Regulation No 17.                Ð breach of Article 5(2) of Council Regulation (EEC)
                                                                       No 1697/79 (1) and Article 220(2)(b) of Council
                                                                       Regulation (EEC) No 2913/92 (2), by introducing a