CELEX: C2002/144/100
Language: en
Date: 2002-06-15 00:00:00
Title: Case T-64/02: Action brought on 28 February 2002 by Dr. Hans Heubach GmbH & Co KG against the Commission of the European Communities

15.6.2002               EN                   Official Journal of the European Communities                                    C 144/49
The applicant claims that the Court should:                             was a leader and its conclusions as to the appropriate level of
                                                                        deterrent uplift in its assessment of the fine.
—     annul Article 1 of the Decision, to the extent that it finds
      that Archer Daniels Midland Company (‘ADM’) has                   Finally, the applicant claims that the defendant has violated
      violated Article 81 EC Treaty and Article 53 EEA                  Article 15(2) of Regulation no. 17 and rules applicable to the
      Agreement by agreeing (i) to restrict capacity and (ii) to        setting of fines. In this regard, the applicant considers that
      designate price leaders in relation to citric acid;               there has been an infringement of the principles of legal
                                                                        certainty, inasmuch as the Guidelines of Fines Methodology
                                                                        was applied to a cartel which ended many years before
—     annul Article 3 of the Decision in so far as it pertains to       these Guidelines were adopted; equal treatment; protection of
      ADM;                                                              legitimate expectations and proportionality. In particular, the
                                                                        Commission did not correctly assesse the value of ADM’s
                                                                        cooperation
—     in the alternative, modify Article 3 of the Decision as it
      pertains to ADM, so as to annul or substantially reduce
      the fine imposed on ADM therein;
—     order that the Commission pay all of the costs of the
      proceedings.
                                                                        Action brought on 28 February 2002 by Dr. Hans Heu-
                                                                        bach GmbH & Co KG against the Commission of the
                                                                                            European Communities
Pleas in law and main arguments
                                                                                                   (Case T-64/02)
                                                                                                 (2002/C 144/100)
The applicant in the present case challenges the Commission
Decision of 5 December 2001, relating to a proceeding under
Article 81 of the EC Treaty and Article 53 of the EEA                                     (Language of the case: German)
Agreement (Case COMP/E-1/36.604 — Citric Acid), to the
extent that it finds that ADM has violated these provisions by
agreeing to restrict capacity and to designate price leaders in
relation to citric acid.                                                An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 28 February 2002 by Dr. Hans
                                                                        Heubach GmbH & Co KG, of Langelsheim (Germany), rep-
In support of its claims, the applicant submits that the Decision       resented by Frank Montag and Günter Bauer, lawyers.
is inadequately reasoned, in as much as:
                                                                        The applicant claims that the Court should:
—     the Commission did not give proper reasons regarding
      how it took account of the damage to and the impact on
      competition or in relation to its decision not to take into       —     annul Article 3(b) of the contested decision;
      account, in assessing the level of ADM’s fine, ADM’s EEA
      in the affected product market;                                   —     reduce to a reasonable sum the amount of the fine
                                                                              imposed on the applicant in the contested decision;
—     it failed to state on what basis an uplift of 100 % could
                                                                        —     order the defendant to pay the costs.
      be considered necessary to have a deterrent effect;
—     the Commission did not state reasons for assessing ADM
      as a leader.                                                      Pleas in law and main arguments
                                                                        The contested decision is the same as that at issue in Case
The applicant submits that there has been an infringement by            T-33/02 Britannia Alloys & Chemicals v Commission (not yet
the Commission of essential procedural requirements, in that            published). The applicant argues that the basic amount of the
it failed to put to ADM its key conclusions regarding the               fine corresponds to more than 100 % of its EEA-wide product
nature of the violations in question, its conclusions that ADM          turnover in 1998, and that the amount of the fine imposed on
 ---pagebreak--- C 144/50               EN                    Official Journal of the European Communities                                     15.6.2002
the applicant is the result of numerous errors on the part of           Action brought on 11 March 2002 by Griffin Europe
the defendant concerning the determination and assessment               Headquarter N.V. against the European Parliament and
of the facts for the purposes of calculating the fine. In addition,                  the Council for the European Union
the defendant infringed numerous fundamental principles of
Community law.
                                                                                                   (Case T-70/02)
The applicant claims that the Guidelines (1) infringe                                            (2002/C 144/101)
Article 15(2) of Regulation No 17/62. Its complaint basically
concerns the flat-rate determination of the amount of fines
resulting from the introduction of the Guidelines. In the                                  (Language of the case: English)
applicant’s view, the amount of fines should be calculated only
in proportion to turnover, and the flat-rate determination
provided for in the Guidelines in respect of smaller undertak-
ings chiefly results in fines which are unreasonable and
disproportionate. Consequently, Article 3(b) of the contested           An action against the European Parliament and the Council of
decision is likewise unlawful.                                          the European Union was brought before the Court of First
                                                                        Instance of the European Communities on 11 March 2002 by
                                                                        Griffin Europe Headquarter N.V., represented by Mr Koen Van
                                                                        Maldegem and Mr Claudio Mereu of McKenna & Cuneo, LLP,
In addition, the applicant maintains that, even assuming that           Brussels (Belgium).
the Guidelines are lawful, the defendant misapplied them. In
particular, the defendant misjudged the constituent element of
the contravention which is the seriousness of the act. It should
have had regard to the fact that the contravention was only             The applicant claims that the Court should:
moderately serious and had little effect on the market, and to
the fact that the undertakings concerned did not adhere to the
                                                                        —     order the partial annulment of Decision 2455/2001/EC
price agreements. The fact that only a very small proportion of
                                                                              of the European Parliament and of the Council dated
the applicant’s total turnover was affected by the contravention
                                                                              20 November 2001 establishing a list of priority sub-
constitutes an infringement of Article 15(2) of Regulation
                                                                              stances in the field of water policy and amending Directive
No 17/62, and, in addition, the limited economic efficiency of
                                                                              2000/60/EC, so as to remove diuron and isoproturon
the applicant was wrongly left out of account.
                                                                              from the measure;
                                                                        —     order the Defendants to pay all costs and expenses in
The applicant argues that, in any event, the amount of the fine
                                                                              these proceedings.
is contrary to the general principles of proportionality and
reasonableness, and that the failure to take into account the
small product turnover of the applicant as compared with the
total turnover resulted in an infringement of the principle
of equal treatment. Quite different fines were imposed on
                                                                        Pleas in law and main arguments
undertakings having a totally similar strength in the market.
                                                                        The applicant in this case produces pesticides (plant protection
Lastly, the applicant maintains that the calculation of the
                                                                        products). The applicant contests the inclusion of certain of its
penalty by the defendant infringes Article 7 of the ECHR,
                                                                        products’ active substances, diuron and isoproturon, in the list
inasmuch as the financial penalty imposed on the applicant
                                                                        of priority substances in the field of water policy. This list is
reflects a range of penalisation which has twice been decisively
                                                                        established by the defendants in execution of Directive 2000/
extended since the termination of the contravention. The
                                                                        60/EC (1). The products listed are considered to present a risk
systematic alteration of the practice followed by the defendant,
                                                                        to or via the aquatic environment and their emissions must be
resulting from the introduction of the Guidelines and the
                                                                        reduced. Furthermore, the contested decision indicates some
change in the method of determining fines at the end of 2001,
                                                                        of the applicant’s products as priority substances ’under
constitutes an extension of the range of penalisation which
                                                                        review’, which will lead, according to the applicant, to a
cannot be applied to conduct which occurred before that
                                                                        classification as priority hazardous substances. These substanc-
extension took place.
                                                                        es pose a higher risk for the aquatic environment and their
                                                                        emissions must be eliminated.
(1) Guidelines on the method of setting fines imposed pursuant to
    Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC     The applicant objects to the procedure and the methodology
    Treaty (OJ 1998 C 9, p. 3).
                                                                        used by the defendants when adopting the contested Decision.
                                                                        To establish the contested list, the defendants used a summary
                                                                        procedure as laid down in Article 16 (2), second paragraph, of
                                                                        Directive 2000/60.