CELEX: C2003/112/76
Language: en
Date: 2003-05-10 00:00:00
Title: Case T-90/03: Action brought on 6 March 2003 by Fédération des Industries Condimentaires de France and Others against the Commission of the European Communities

C 112/40              EN                         Official Journal of the European Union                                        10.5.2003
Action brought on 6 March 2003 by Fédération des                               Économique Agricole Régional Fruits et Légumes de
Industries Condimentaires de France and Others against                         Bretagne and EUR 1 641 666 per year for the Comité
      the Commission of the European Communities                               Interprofessionnel des Palmipèdes à Foie Gras, or any
                                                                               other amount which the Court may deem appropriate or
                                                                               as may be increased in the course of proceedings;
                         (Case T-90/03)
                                                                         —     order the Commission to compensate the applicants
                        (2003/C 112/76)                                        (including their members) for the non-material damage
                                                                               suffered as a result of the decision adopted on 9 July
                                                                               2002 (and until the applicants’ products are removed
                  (Language of the case: French)                               from the list of American measures), amounting to
                                                                               EUR 200 000 for each of the four applicants (harm to
                                                                               their image in the United States) and EUR 200 000 for
                                                                               each of the four applicants (harm to their credibility), or
                                                                               any other amount which the Court may deem appropriate
An action against the Commission of the European Communi-                      or as may be increased in the course of proceedings.
ties was brought before the Court of First Instance of the
European Communities on 6 March 2003 by the Fédération
des Industries Condimentaires de France, established in Paris,           —     order the Commission to pay the costs of the proceedings.
the Confédération Générale des Producteurs de Lait de Brebis
et des Industriels de Roquefort, established in Millau (France),
the Comité Économique Agricole Régional Fruits et Légumes
de Bretagne, established in St-Martin-des-Champs (France) and
the Comité Interprofessionnel des Palmipèdes à Foie Gras,
established in Paris, represented by Michel-Jean Jacquot and
Olivier Prost, lawyers.                                                  Pleas in law and main arguments
The applicants claim that the Court should:
                                                                         The purpose of the present application is to seek compensation
                                                                         for the damage allegedly caused by the Commission’s purport-
—    order the Commission to compensate the applicants                   ed failure to take action in the face of retaliatory measures
     (including their members who have suffered damage) for              taken by the United States of America in the context of the
     the material damage suffered in the period from 29 July             WTO following the adoption by the Community of legislation
     1999 to 9 July 2002, amounting to EUR 9 805 251 for                 prohibiting the importation of certain substances having a
     the Fédération des Industries Condimentaires de France,             hormonal action (1). Those measures are applied selectively.
     EUR 5 190 000 for the Confédération Générale des                    Thus, so far as concerns mustard, Roquefort cheese, shallots
     Producteurs de Lait de Brebis et des Industriels de                 and foie gras (with which the present application is concerned),
     Roquefort, EUR 33 451 860 for the Comité Économique                 the United States measures applied to all the Member States
     Agricole Régional Fruits et Légumes de Bretagne and                 except the United Kingdom.
     EUR 4 925 000 for the Comité Interprofessionnel des
     Palmipèdes à Foie Gras, or any other amount which the
     Court may deem appropriate or as may be increased in
     the course of proceedings;
                                                                         The Commission’s failure to take action arises from its decision
                                                                         terminating the examination procedures concerning obstacles
—    order the Commission to compensate the applicants                   to trade, within the meaning of Council Regulation (EC)
     (including their members) for the non-material damage               No 3286/94, consisting of trade practices maintained by the
     suffered in the period from 29 July 1999 to 9 July                  United States of America in relation to imports of prepared
     2002, amounting to EUR 200 000 for each of the four                 mustard ( 2). The applicants have brought an action (3) for the
     applicants, or any other amount which the Court may                 annulment of that decision.
     deem appropriate or as may be increased in the course of
     proceedings;
—    order the Commission to compensate the applicants                   The applicants take the view that the non-contractual liability
     (including their members who have suffered damage) for              of the Commission is incurred as a result of:
     the material damage suffered as a result of the decision
     adopted on 9 July 2002 (and until the applicants’
     products are removed from the list of American                      —     its failure to take action following the adoption by the
     measures), amounting to EUR 3 268 417 per year for the                    United States of the measures in issue. They plead in that
     Fédération des Industries Condimentaires de France,                       respect infringement of Articles 113 and 211 EC, stating
     EUR 1 730 000 per year for the Confédération Générale                     that, by its inaction, the Commission tacitly approved the
     des Producteurs de Lait de Brebis et des Industriels de                   United States measures, thus also putting in question the
     Roquefort, EUR 11 150 620 per year for the Comité                         logic itself of the common commercial policy;
 ---pagebreak--- 10.5.2003                 EN                        Official Journal of the European Union                                           C 112/41
—      the adoption of its decision of 9 July 2002. In that                 mitted a further infringement of Article&nbsp:81(1) EC inas-
       respect, the applicants refer to the pleas in law and                much as they had participated, in the period from February
       arguments put forward in Case T-317/02, cited above.1                1993 to November 1996, in agreements and concerted
                                                                            practices in the extruded specialty graphite sector. By the
                                                                            contested decision, the defendant imposed on the applicant a
( 1) See, in particular, Council Directive 96/22/EC of 29 April 1996        fine of EUR 18.94 million for the isostatically pressed specialty
     concerning the prohibition on the use in stockfarming of certain       graphite sector and a fine of EUR 8.81 million for the extruded
     substances having a hormonal or thyrostatic action and of ß-           specialty graphite sector.
     agonists, and repealing Directives 81/602/EEC, 88/146/EEC and
     88/299/EEC (OJ 1996 L 125, p. 3).
( 2) OJ 2002 L 195, p. 72.
( 3) Case T-317/02 (OJ 2002 C 323, p. 37).                                  The applicant relies on five pleas in law:
                                                                            —     Breach of the principle of non bis in idem and the
                                                                                  principle of proportionality. The applicant argues that the
                                                                                  defendant infringed the prohibition of double jeopardy
                                                                                  inasmuch as it failed to take into consideration in its
                                                                                  decision the fines already imposed in North America on
                                                                                  the international part of the cartel, and inasmuch as it
Action brought on 10 March 2003 by SGL Carbon AG                                  carried out a second administrative-fine proceeding
   against the Commission of the European Communities                             against, among others, the applicant in the graphite
                                                                                  electrode sector. In the alternative, the applicant argues
                            (Case T-91/03)                                        that, even if a second proceeding might have been
                                                                                  lawful, the defendant should nevertheless have taken into
                                                                                  account the fines already imposed when determining the
                           (2003/C 112/77)                                        amount of the fine.
                     (Language of the case: German)                         —     Breach of the principle of the right to a fair hearing and
                                                                                  of the applicant’s rights of defence. The applicant argues
                                                                                  that, in its decision, the defendant surprisingly re-evalu-
                                                                                  ated the contributions of LCL and the applicant to the
An action against the Commission of the European Communi-                         infringement and therefore deprived the applicant of the
ties was brought before the Court of First Instance of the                        opportunity to state its views on this matter adequately
European Communities on 10 March 2003 by SGL Carbon                               during the administrative proceeding. The defendant also
AG, Wiesbaden (Germany), represented by M. Klusmann and                           appointed case handlers who did not have a sufficient
P. Niggemann, Rechtsanwälte.                                                      command of the German language, with the result that
                                                                                  the defendant failed to give full consideration to the
                                                                                  applicant’s submissions.
The applicant claims that the Court should:
                                                                            —     Infringement of essential procedural requirements and of
—      annul the contested decision in so far as the applicant is                 the obligation to state reasons under Article 253 EC
       concerned;                                                                 inasmuch as the defendant took as the basis for its
                                                                                  decision incorrect and defective market data.
—      in the alternative, reduce appropriately the amount of the
       fine imposed on the applicant in the contested decision;
                                                                            —     Infringement of Article 15(2) of Regulation No 17/62/
                                                                                  EEC on account of allegedly erroneous determination of
—      order the defendant to pay the costs.
                                                                                  the fines. The applicant argues that, in determining the
                                                                                  fines, the defendant took account of the gravity of the
                                                                                  offence in an inadmissible way, wrongly imputed to the
                                                                                  applicant the role of a cartel leader, disregarded the upper
Pleas in law and main arguments                                                   limit of penalties, failed to take into consideration the
                                                                                  applicant’s ability to pay and the supposed absence of
                                                                                  any requirement of a deterrent effect, and failed to give
The applicant manufactures various graphite products, includ-                     due recognition to the applicant’s contributions by way
ing ‘specialty graphite’. The defendant complained that the                       of cooperation.
applicant and other manufacturers and distributors of isostatic
specialty graphite had participated in a continuing agreement
and/or concerted practices which affected the market for
isostatic specialty graphite in the European Community and                  The applicant further claims that the interest imposed on the
the European Economic Area. The alleged infringements relate                fine is unlawful.
primarily to the period from July 1993 to February 1998. In
addition, the defendant also alleged that the applicant and
UCAR, another manufacturer of specialty graphite, had com-