CELEX: C1995/101/32
Language: en
Date: 1995-04-22 00:00:00
Title: Action brought on 17 February 1995 by SA des Ciments Luxembourgeois against the Commission of the European Communities (Case T-34/95)

No C 101 /14            EN                  Official Journal of the European Communities                                      22 . 4 . 95
      incomplete and fragmentary; (c ) it refused to hear the          Pleas in law and main arguments adduced in support:
      applicant in relation to certain allegations which have
      resulted in the imposition of a fine; ( d ) it called upon the   The applicant states that, prior to being recruited following
      applicant to submit a defence against incomplete and             an open competition, she was seconded to the Commission
      fragmentary objections; and (e) it included in the               as a national expert; she therefore established her residence
      decision fresh accusations against the applicant which           in Brussels for a period limited to the duration of her
      were not levelled as such against the applicant in the           secondment, whilst retaining her principal residence in
      statement of objections.                                         Madrid. She now contests the fixing of Brussels as her place
                                                                       of recruitment .
— Infringement of one or more higher-ranking rules of law,
      including Article 85 ( 1 ) and ( 2 ) of the EC Treaty,           The action is based on infringements of Article 71 of the
      Regulation No 17/62 and general legal principles:                Staff Regulations, of Articles 5 , 7, 8 , 9 and 10 of Annex VII
                                                                       to the Staff Regulations and of Article 2 of the general
      The Commission has failed to show that the applicant             provisions implementing Article 7 of Annex VII, as well as a
      acted contrary to Article 85 of the EC Treaty. More              manifest error of assessment. The applicant complains that
      particularly, it has not demonstrated that the applicant         the Commission disregarded the fact that she did not have a
      'participated' in the Cembureau agreement or in any              fixed and settled residence in Brussels and that Madrid was
      concerted practice relating to the exchange of price             still the permanent centre of her interests.
      information .
      Lastly, the applicant contends that the fine imposed on it
      should be cancelled or reduced, since it is not consonant
      with all the charges made against it, those charges are
      not supported by sufficient evidence and the fine
      imposed on it is inadequately reasoned .                         Action brought on 17 February 1995 by SA des Ciments
                                                                       Luxembourgeois against the Commission of the European
I 1 ) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                                       Communities
                                                                                                (Case T-34/95 )
                                                                                                 ( 95/C 101/32 )
                                                                                      (Language of the case: German)
Action brought on 16 February 1995 by Maria Lidia
Lozano Palacios against the Commission of the European
                            Communities                                An action against the European Communities was brought
                                                                       before the Court of First Instance of the European
                          (Case T-33/95 )                              Communities on 17 February 1995 by SA des Ciments
                           ( 95/C 101 /31 )                            Luxembourgeois of Esch-sur-Alzette ( Luxembourg),
                                                                       represented by Joachim Sedemund, Rechtsanwalt, Cologne,
                 (Language of the case: French)                        with an address for service in Luxembourg at the Chambers
                                                                       of Aloyse May, 31 Grand-Rue .
An action against the Commission of the European
Communities was brought before the Court of First                      The applicant claims that the Court should :
Instance of the European Communities on 16 February
1995 by Maria Lidia Lozano Palacios, residing in Brussels,             1 , annul Articles 1 , Article 2 ( 1 ) and (2 ) and Article 9 of
represented by Jean-Noël Louis, of the Brussels Bar, with an                Commission Decision C(94 ) 3077 final of 30 November
address for service in Luxembourg at the office of Fiduciaire               1994 relating to a proceeding under Article 85 of the EC
Myson Sari, 1 Rue Glesener.                                                 Treaty ( Cases IV/33.126 and 33.322 — Cement), in so
                                                                            far as they concern the applicant;
The applicant claims that the Court should :
                                                                       2 , in the alternative, reduce the fine of ECU 1 052 000
— annul the decision of the Commission of 12 April 1994                     imposed on the applicant by Article d of the contested
      in so far as it fixes Brussels as the applicant place of              decision to a reasonable sum;
      recruitment,
                                                                       3 , order the Commission to pay the costs .
— order the defendant to pay the applicant the installation
      allowance and daily subsistence allowance with default
      interest at the annual rate of 8% from the date of               Pleas in law and main arguments adduced in support:
      becoming due until the date of payment, together with
      repayment of her travel expenses and expenditure                 The applicant raises the following procedural objections :
      incurred or to be incurred in the removal of her effects to
      Brussels, and                                                    — the Commission prejudiced the applicant's right to a fair
                                                                            hearing, in that it communicated to it only certain parts
— order the defendant to pay the costs .                                    of the statement of objections,
 ---pagebreak---  22 . 4 . 95        | EN                           Official Journal of the European Communities                                     No C 101 / 15
— the Commission infringed the applicant's right to a fair                       Pleas in law and main arguments adduced in support:
     hearing and the principle of fair procedure, in that it
     failed to make clear, either in the statement of objections                  ( 1 ) The applicant complains that, by reasons of procedural
     or in the decision, precisely which of the acts of the                             defects, the Commission has infringed the applicant's
     applicant were complained of.                                                      right to a fair hearing, in that it:
                                                                                        — did not give the applicant any access whatever to
The applicant further pleads as follows regarding the                                       parts of the documentation in the proceeding, and
substance of the matter :                                                                   gave access to other documents only in the form of
                                                                                             illegible copies,
— the applicant at no time participated in any agreement
     on non-transhipment to home markets and the                                        — failed to provide German translations of numerous
     regulation of cross-border supplies of cement,                                         items of documentary evidence and extensive parts
                                                                                            of the provisional minutes of hearings,
— the Commission's complaint that the applicant
     communicated to Cembureau-The European Cement                                      — prescribed an unreasonably short time limit for
     Association the unpublished prices actually charged by                                 the submission of replies to the statement of
     the applicant is unfounded . The Commission's                                          objections,
     assumptions in that regard are based on errors of                                  — omitted, contrary to the principles governing
     fact.
                                                                                            official investigations, to include within the
                                                                                            subject-matter of the proceeding its internal
In the alternative, the fine should be reduced, since,                                      documentation regarding discussions between the
according even to the contents of the decision itself, the                                   Commissioner responsible for competition matters
participation by the applicant in the alleged infringements                                 and the undertakings concerning aid to certain
was minimal, and the applicant could not have assumed that                                   Greek producers and discussions concerning the
the communication of publicly available gross price lists                                   basing point system,
constituted an infringement of Article 85 of the EC
Treaty.                                                                                 — formulated the statement of objections sent to the
                                                                                            applicant in a manner which was incomplete and
                                                                                            insufficiently specific.
                                                                                 ( 2 ) The contested decision is unlawful, in that:
Action brought on 17 February 1995 by Dyckerhoff                                        — it is inadequately reasoned and fails, in breach of the
Aktiengesellschaft against the Commission of the European                                   applicant's right to a fair hearing, to deal with the
                           Communities                                                      defence open to the applicant,
                         (Case T-35/95 )                                                — it misconstrues the actual cicumstances in the
                          ( 95/C 101 /33 )                                                  cement market and therefore necessarily draws
                                                                                            erroneous conclusions regarding the possibility of
                                                                                            cross-border competition,
               (Language of the case: German)
                                                                                        — it fails adequately to take into consideration the
An action against the Commission of the European                                            particular competitive situation of the applicant,
Communities was brought before the Court of First
Instance of the European Communities on 17 February                                     — it goes beyond the legal limits within which the
1995 by Dyckerhoff Aktiengesellschaft of Wiesbaden                                          alleged conduct of Cembureau and/or of certain
( Federal Republic of Germany ), represented by Claus Tessin                                sub-groups and of the national associations may be
and Frank Montag, Rechtsanwàlte, Cologne, with an                                           imputed to undertakings .
address for service in Luxembourg at the Chambers of
Aloyse May, 31 Grand-Rue .                                                       ( 3 ) The applicant contends, lastly, that individual articles
                                                                                        of the contested decision are unlawful, since they are
                                                                                        based neither on the actual findings contained in the
The applicant claims that the Court should :                                            Decision nor in Article 85 ( 1 ) of the EC Treaty:
1 , annul Articles 1 , 3 ( 3 ) (a ), 4 ( 1 ), (2 ) and ( 3 ) ( a ), 5 , 7, 8 , 9        — contrary to what is stated in Article 1 of the
     and 10 of Commission Decision C(94 ) 3077 final of                                     Decision, the applicant did not participate in any
     30 November 1994 relating to a proceeding under                                        Cembureau agreement, since no such agreement
     Article 85 of the EC Treaty ( Cases IV/33.126 and                                      existed,
     33.322 — Cement), in so far as they concern the
     applicant;                                                                         — there is no evidence to support the finding in Article
                                                                                            3 ( 3 ) ( a ) of the Decision that the applicant
2 , in the alternative, reduce to a reasonable sum the fines of                             participated in agreements and concerted practices
     ECU 12 296 000 and ECU 988 000 imposed on the                                          involving the regulation of cement supplies from
     applicant by Articles 9 and 10 of the contested                                        France to Germany; in any event, discussions held
     Decision;                                                                              in that regard did not result in any agreements or
                                                                                            practices contrary to Article 85 ( 1 ) of the EC
3 , order the Commission to pay the costs.                                                  Treaty,