CELEX: C2004/059/23
Language: en
Date: 2004-03-06 00:00:00
Title: Case C-552/03 P: Appeal brought on 29 December 2003 by Unilever Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd, against the judgment delivered on 23 October 2003 by the Fifth Chamber of the Court of First Instance of the European Communities in case T-65/98 between Van den Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the Commission of the European Communities

6.3.2004                EN                         Official Journal of the European Union                                             C 59/13
As a result of its failure to fulfil those obligations, Spain must               —     2001/12/EC of the European Parliament and of the
pay default interest, in accordance with Community rules on                            Council of 26 February 2001 amending Council
own resources. According to settled case-law, there is an                              Directive 91/440/EEC on the development of the
indissoluble link between the obligation to establish the                              Community’s railways (1);
Community’ own resources, the obligation to credit them to
the Commission’s account within the prescribed time-limit                        —     2001/13/EC of the European Parliament and of the
and, finally, the obligation to pay default interest, which is                         Council of 26 February 2001 amending Council
owed for the whole period of delay and is payable regardless                           Directive 95/18/EC on the licensing of railway
of the reason for the delay in making the entry in the                                 undertakings (2);
Commission’s account. Consequently, the reference made by
the Spanish authorities to their internal procedures, has no
influence as regards its obligation to pay default interest. In                  —     2001/14/EC of the European Parliament and of the
order to enable the Commission to calculate the default                                Council of 26 February 2001 on the allocation of
interest, Spain must communicate to it all the information                             railway infrastructure capacity and the levying of
necessary on the periods which elapsed between the entry in                            charges for the use of railway infrastructure and
the accounts, as the relevant time for the establishment of own                        safety certification (3);
resources, according to the provisions of Community law on
the collection of those resources, and the practice followed by                  and in any event by failing to notify the provisions in
the Spanish authorities. The Kingdom of Spain has failed to                      question to the Commission, the Hellenic Republic has
fulfil that obligation.                                                          failed to fulfil its obligations under those directives.
                                                                           —     order the Hellenic Republic to pay the costs.
(1) Council Regulation (EEC) No 2913 of 12 October 1992 estab-
    lishing the Community Customs Code (OJ 1992 L 302, p. 1).
(2) Council Regulation (EEC) No 1854/89 of 14 June 1989 on the
    entry in the accounts and terms of payment of the amounts of
    import duties or export duties resulting from a customs debt (OJ       Pleas in law and main arguments
    1989 L 186, p. 1).
(3) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989
    implementing Decision 88/376/EEC, Euratom on the system of
    the Communities own resources (OJ 1989 L 155, p. 1).                   The period prescribed for transposing the directives into
(4) Council Regulation (EC, Euratom) No 1150/2000 of 22 May                national law expired on 15 March 2003.
    2000 implementing Decision 94/728/EC, Euratom on the system
    of the Communities own resources (OJ 2000 L 130, p. 1).
                                                                           (1) OJ L 75 of 15.03.2001, p. 1.
                                                                           (2) OJ L 75 of 15.03.2001, p. 26.
                                                                           (3) OJ L 75 of 15.03.2001, p. 29.
Action brought on 23 December 2003 by the Commission
     of the European Communities against the Hellenic
                             Republic
                                                                           Appeal brought on 29 December 2003 by Unilever
                         (Case C-550/03)                                   Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd,
                                                                           against the judgment delivered on 23 October 2003 by
                                                                           the Fifth Chamber of the Court of First Instance of the
                          (2004/C 59/22)
                                                                           European Communities in case T-65/98 between Van den
                                                                           Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the
                                                                                    Commission of the European Communities
An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 23 December                                          (Case C-552/03 P)
2003 by the Commission of the European Communities,
represented by Georgios Zavvos and Wouter Wils, of its Legal
Service.                                                                                               (2004/C 59/23)
The applicant claims that the Court should:
                                                                           An appeal against the judgment delivered on 23 October 2003
—      declare that, by failing to adopt the laws, regulations             by the Fifth Chamber of the Court of First Instance of the
       and administrative provisions necessary to comply with              European Communities in case T-65/98 (1) between Van den
       Directives:                                                         Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the
 ---pagebreak--- C 59/14                EN                         Official Journal of the European Union                                         6.3.2004
Commission of the European Communities, was brought                             adequate reasons as to why Bronner is not relevant to the
before the Court of Justice of the European Communities on                      present case.
29 December 2003 by Unilever Bestfoods (Ireland) Ltd,
formerly HB Ice Cream Ltd, established in Dublin (Ireland),
represented by M. Nicholson, M. Rowe, M. Biesheuvel and                   (1) OJ C 234, 25.07.1998, p. 28.
M. de Grave, lawyers, with an address for service in Luxem-
bourg.
The Appellant claims that the Court should:
(a)   set aside — in its entirety or partially — the judgment of          Appeal brought on 30 December 2003 by the Panhellenic
      the Court of First Instance (Fifth Chamber) of 23 October           Union of Cotton Ginners and Exporters against the
      2003 in case T-65/98, excluding paragraph 3 of the                  judgment delivered on 16 October 2003 by the Fifth
      operative part of the judgment; and                                 Chamber (Extended Composition) of the Court of First
                                                                          Instance of the European Communities in case T-148/
                                                                          00 (1) between the Panhellenic Union of Cotton Ginners
(b) annul — in its entirety or partially — the Commission                 and Exporters and the Commission of the European
      Decision in Case Nos. IV/34.073, IV/34.395 and IV/                       Communities, supported by the Hellenic Republic
      35.946 relating to a proceeding under Articles 81
      (formerly 85) and 82 (formerly 86) of the Treaty (Van
      den Bergh Foods Ltd) or, alternatively, refer the case back                                 (Case C-553/03 P)
      to the Court of First Instance; and
                                                                                                    (2004/C 59/24)
(c)   order the Commission to pay the Applicant’s costs at first
      instance and in this Application on appeal.
                                                                          An appeal against the judgment delivered on 16 October 2003
                                                                          by the Fifth Chamber (Extended Composition) of the Court of
                                                                          First Instance of the European Communities in case T-148/00
                                                                          between the Panhellenic Union of Cotton Ginners and
Pleas in law and main arguments
                                                                          Exporters and the Commission of the European Communities,
                                                                          supported by the Hellenic Republic, was brought before the
                                                                          Court of Justice of the European Communities on 30 December
The Appellant submits that the Court of First Instance erred in           2003 by the Panhellenic Union of Cotton Ginners and
law by concluding that the distribution agreements of Van den             Exporters, established in Thessaloniki (Greece), represented by
Bergh Foods Ltd (formerly HB Ice Cream Ltd) are liable to have            K. Adamantopoulos and J. Gutiérrez Gisbert, lawyers, with an
an appreciable effect on competition for the purposes of                  address for service in Luxembourg.
Article 81(1) of the Treaty and contribute significantly to a
foreclosure of the market.
                                                                          The Appellant claims that the Court should:
                                                                          1.    set aside the judgment of the Court of First Instance of
The Appellant also submits that the Court of First Instance                     16 October 2003 in case T-148/00 which dismissed the
erred in law when applying Article 81(3) of the Treaty. It                      original application of the Appellant before the Court of
wrongly applied the relevant burden and standard of proof                       First Instance as inadmissible and ordered the Appellant
and, in so doing, rendered its judgment inadequatly reasoned.                   to bear its own costs and those of the European Com-
                                                                                mission in relation to the action before the Court of First
                                                                                Instance;
Finally, it is submitted that the Court of First Instance erred in        2.    as requested originally before the Court of First Instance,
law in two respects when applying Article 82 of the Treaty:                     annul Article 1 of the Commission Decision (2000/206/
                                                                                EC) (2) on an aid scheme applied in Greece to cotton by
                                                                                the Greek Cotton Board, in so far as it only declares
—     it drew legal inferences which were unwarranted and
                                                                                Article 30(3) of Law 2040/92 of 17/23.4.1992, and not
      inadequately reasoned and cannot, therefore, support a
                                                                                Article 30(1) as well, incompatible with the common
      conclusion as to the abusive nature of the inducement;
                                                                                market; and
      and
                                                                          3.    order that the costs of and occasioned by these proceed-
—     it failed to apply the legal principles advanced by the                   ings, and those before the Court of First Instance, be
      Court in Bronner or, in the alternative, failed to give                   borne by the European Commission.