CELEX: C1997/054/19
Language: en
Date: 1997-02-22 00:00:00
Title: Appeal brought on 10 December 1996 by Dafra Lines A/S against the judgment delivered on 8 October 1996 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-24/93 between Compagnie Maritime Belge Transport NV and Compagnie Maritime Belge NV and the Commission of the European Communities, supported by Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S and the Commission of the European Communities, T-26/93 between Deutsche Afrika-Linien GmbH & Co. and the Commission of the European Communities and T-28/93 between Nedlloyd Lijnen BV and the Commission of the European Communities (Case C-396/96 P)

No C 54/ 12                  EN~1            Official Journal of the European Communities                                  22 . 2 . 97
( b ) that account ought to have been taken of the difficult            Appeal brought on 10 December 1996 by Dafra Lines A/S
      financial position of the appellants, as well as of the           against the judgment delivered on 8 October 1996 by the
      novelty of the alleged infringements, of the regulatory           Third Chamber, Extended Composition, of the Court of
      context in Zaire, and of the cooperative attitude of the          First Instance of the European Communities in Joined
      appellants;                                                       Cases T-24/93 between Compagnie Maritime Beige
                                                                        Transport NV and Compagnie Maritime Beige NV and the
                                                                        Commission of the European Communities, supported by
( c ) that the statement of objections was not addressed to             Grimaldi and Cobelfret, T-25/93 between Dafra Lines A/S
      the appellants but to Cewal , and the statement of                and the Commission of the European Communities, T-26/
      objections threatened to impose fines on Cewal and                93 between Deutsche Afrika-Linien GmbH & Co . and the
      not on its members, and that therefore the                        Commission of the European Communities and T-28/93
      Commission was not entitled thereafter to impose                  between Nedlloyd Lijnen BV and the Commission of the
      fines on some of Cewal 's members without having                                     European Communities
      announced it in the statement of objections;                                           ( Case C-396/96 P )
                                                                                                 ( 97/C 54/ 19 )
( d ) that no reason is given why 95 % of the fine should
      have been imposed on CMB (which carried 35 % of                   An appeal against the judgment delivered on 8 October
      the trade ) while no fine was imposed on CMZ ( which              1996 by the Third Chamber, Extended Composition, of
      carried 40 % of the trade ); that the only reason is that         the Court of First Instance of the European Communities
      the Commission found it politically difficult to impose           in Joined Cases T-24/93 between Compagnie Maritime
      a fine on a Zairian liner company; that the                       Beige Transport NV and Compagnie Maritime Beige NV
      Commission also wanted to strike a 'political balance '           and the Commission of the European Communities,
      with the fine imposed previously, for a very different            supported by Grimaldi and Cobelfret, T-25/93 between
      behaviour, on the French company Delmas;                          Dafra Lines A/S and the Commission of the European
                                                                        Communities, T-26/93 between Deutsche Afrika-Linien
                                                                        GmbH &C Co . and the Commission of the European
( e ) that also the interest rate applicable to the payment of          Communities and T-28/93 between Nedlloyd Lijnen BV
      the fine ( 13,25% ) is abnormally high .                          and the Commission of the European Communities, was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 10 December 1996 by Dafra Lines A/S ,
The appellants finally submit that anti-trust procedures                represented by Messrs Michel Waelbroeck and Denis
resulting in the imposition of fines upon companies are                 Waelbroeck, of the Brussels Bar, with an address for
procedures having criminal character within the meaning                 service in Luxembourg at the Chambers of Maitre Ernest
of the ECHR and that therefore the Court of First                       Arendt, 8 — 10 rue Mathias Hardt .
Instance has infringed :
                                                                        The appellant claims that the Court should :
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the        — quash the judgment of the CFI,
      accusation' has been modified by the Court of First
      Instance;                                                         — annul the contested decision of the Commission,
                                                                        — alternatively, if the decision of the Commission is not
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of                 annulled in its entirety, annul or, at the very least,
      First Instance has considered that the appellants could               reduce substantially the fine imposed on the appellant,
      be fined, contrary to all existing case-law, for entirely
      novel abuses,           never condemned   before,  and    in      — in any event, order the Commission to pay the costs of
      particular:                                                           the whole procedure .
                                                                        Pleas in law and main arguments adduced in support:
      — their refusal to renounce an exclusivity right
           granted by the State ,                                       In the present appeal the appellants limit themselves to the
                                                                        following points , namely :
      — their meeting competition with an outsider,
           without making losses,                                       — that none of the three alleged abuses which have been
                                                                            held against them by both the Commission and the
                                                                            Court of First Instance can be characterized as such ,
      — their granting loyalty rebates, expressly exempted
           by a group exemption regulation .                            — that the Court of First Instance was wrong in rejecting
                                                                            their arguments as to the collective assessment of their
(') Council Regulation ( EEC ) No 4056/86 of 22 December 1986               dominance,
     laying down detailed rules for the application of Articles 85
     and 86 of the Treaty to maritime transport ( OJ No L 378 ,         — that, at the very least, the fine should be substantially
     31 . 12 . 1986 , p. 4 ).                                               reduced ,
                                                                        — that the appellants' right to a fair hearing have been
                                                                            infringed by the Court of First Instance,
 ---pagebreak--- 22 . 2 . 97             EN                  Official Journal of the European Communities                                          No C 54/ 13
— that the Court of First Instance has infringed the                          must indeed be entitled to meet competition from
      appellants' right to a strict interpretation of criminal                third parties, and that there is in any event no possible
      law provisions .                                                        charge of predation against a dominant firm 's pricing
                                                                              policy above average costs;
In particular, the present appeal is based on the following
grounds:                                                               ( d ) that neither the name given to the practice by Cewal
                                                                              members nor the intention pursued by the parties is
                                                                              relevant in assessing the existence of an abuse; that the
As to the first alleged abuse consisting in ' participating in
                                                                              Commission itself has consistently held that ' it does
the implementation of the Ogefrem Agreement and
                                                                              not consider an intention even by a dominant firm to
insisting repeatedly by a variety of means that it be strictly
                                                                              prevail over its rivals as unlawful '.
complied with ', the appellants respectfully submit:
( a ) that the Court of First Instance in its judgment has not         As to the third alleged abuse resulting from the fact that
      based itself on the previous accusations made by the             100% loyalty agreements were offered by Cewal , the
      Commission but on an entirely new accusation —                   appellants respectfully submit:
      never made before by the Commission , and not
      supported by the facts — and by doing so violated                ( a ) that a condemnation of the appellants ' loyalty rebates
      their rights of defence and their right to a fair trial ;               in this instance means a de facto rewording of Article
                                                                              5 ( 2 ) ( b ) ( i ) of Regulation ( EEC ) No 4056/86 (')
( b ) that the judgment of the Court of First Instance is                     ( which allows expressly conference members 'to
      further affected by a manifest contradiction in                         institute and maintain loyalty arrangements with
      reasoning;                                                              transport users') into a rule saying that 100% loyalty
                                                                              rebates may be offered provided that prevailing
                                                                              marketing conditions are such that the conference is
( c ) that in any event, even if the original accusation had                  not dominant; that according to the Court of First
      not been changed by the Court of First Instance, the                    Instance 's own definition of collective dominance, this
      alleged abuse cannot be held against the appellants;                    will however never be the case and that therefore the
      that the Court of First Instance has entirely ignored                   interpretation given by the Court of First Instance
      the various pleas put forward by the appellants in that                 deprives the regulation of its ' effet utile ';
      respect .
                                                                       ( b ) that even if the Court of First Instance was right in its
As to the second alleged abuse consisting in the so-called                    interpretation of Article 5 ( 2 ) ( b ) ( i ) of the Regulation ,
' fighting ships' practices, the appellants respectfully                      the appellants only failed to comply with an
submit :                                                           1          ' obligation ' attaching to exemption and not with a
                                                                              'condition ' attaching to exemption ; that therefore the
( a ) that the Court of First Instance has interpreted the                    Commission was obliged first to withdraw the benefit
      contested decision as being based on a definition of                    of the block exemption (ex nunc) before
      ' fighting ships' which is diametrically different from                 contemplating the adoption of other measures under
      that contained in the statement of objections; that if                  Article 86 of the EC Treaty if the infringement
      the Court of First Instance is right in this                            continued ( infringement of Articles 7 ( 1 ) and 8 ( 2 ) of
      interpretation of the Decision, it should necessarily                   Regulation ( EEC ) No 4056/86 );
      have     concluded   that   the   decision  offended      the
      appellants ' rights of defence and their right to a fair         ( c ) that, finally, the Court of First Instance has given to
      trial ;                                                                 the decision a meaning which is irreconcilable with its
                                                                              own terms .
( b ) that — alternatively — if the Court of First Instance
      has interpreted wrongly the Commission 's decision , it          As to the applicability of Article 86 of the EC Treaty in
      has modified itself the accusation against the                   case of collective dominance, the appellants respectfully
      appellants in violation of the appellants' rights of             submit :
      defence and to a fair hearing;
                                                                       ( a ) that the Commission 's decision contained no sufficient
( c ) that the appellants have demonstrated that none of the                  reasoning to justify the applicability of Article 86 of
      conditions of the original accusation made against                      the F"C Treaty collectively to the Cewal members and
      them in the statement of objections was met; that the                   that it was not for the Court of First Instance to
      newly defined accusation against the appellants ( as                    supplement or second-guess the reasoning of the
      opposed to the original accusation made in the                          Commission by extracting individual elements from
      statement of objections ) is incompatible with Article 86               the decision to support a collective assessment of their
      of the EC Treaty in so far as it prohibits a conference                 position on the market;
      to merely respond to requests of customers to adapt
      the conference 's tariffs to those of an outsider, without
      having thereby incurred any losses, nor having made               ( b ) that in order to establish a collective dominance, the
      any price discrimination ; that dominant companies                       Court of First Instance has wrongly relied on the fact
 ---pagebreak--- No C 54/ 14               EN                 Official Journal of the European Communities                                            22 . 2 . 97
      that the undertakings in question participated in 'what                — its meeting competition with an outsider, without
      is essentially, if anything at all, an Article 85 practice';                making losses;
( c ) that the Court of First Instance erred in law when it                  — its granting loyalty rebates, expressly exempted by
      decided that concerted behaviour among Cewal                                a group exemption regulation.
      members could be viewed as ' abuses ' within the
      meaning of Article 86 of the EC Treaty, although they             (') Council Regulation ( EEC ) No 4056/86 of 22 December 1986
      were not the result of unilateral conduct by the Cewal                laying down detailed rules for the application of Articles 85
      members;                                                              and 86 of the Treaty to maritime transport ( OJ No L 378 ,
                                                                            31 . 12 . 1986 , p. 4 ).
( d ) that, at the very least, the Court of First Instance has
      not responded to the appellant's pleas in that respect.
Alternatively, the appellant claims that the fine should be
annulled or substantially reduced . Indeed, they have                   Reference for a preliminary ruling by the Tribunale
shown :                                                                 Amministrativo Regionale del Lazio by order of that court
                                                                        of 14 February 1996 in the case of Associazione
                                                                        Produttori Vitivinicoli della Provincia di Treviso and
( a ) that account ought to have been taken of the novelty              Others        against      Ministero        delle  Risorse   Agricole,
      of the alleged infringements, of the regulatory context           Alimentari       e    Forestali      ( Interveners  ad   adiuvandum :
      in Zaire, and of the cooperative attitude of the                  Consorzio Agrario Interprovinciale di Treviso e Belluno
      appellant;                                                                                         and Others )
                                                                                                     ( Case C-398/96 )
( b ) that the statement of objections was not addressed to                                             ( 97/C 54/20 )
      the appellant but to Cewal , and the statement of
      objections threatened to impose fines on Cewal and
      not on its members, and that therefore the                        Reference has been made to the Court of Justice of the
      Commission was not entitled thereafter to impose                  European Communities by order of the Tribunale
      fines on some of Cewal 's members without having                  Amministrativo Regionale ( Regional Administrative
      announced it in the statement of objections ;                     Court), Lazio, of 14 February 1996, received at the Court
                                                                        Registry on 16 December 1996 , for a preliminary ruling in
                                                                        the case       of Associazione          Produttori  Vitivinicoli  della
( c ) that no reason is given why no fine was imposed on                Provincia di Treviso and Others against Ministero delle
      CMZ ( which carried 40% of the trade ); that the only             Risorse Agricole, Alimentari e Forestall ( Interveners ad
      reason is that the Commission found it politically                adiuvandum : Consorzio Agrario Interprovincial di Treviso
      difficult to impose a fine on a Zairian liner company;            e Belluno and Others ) on the following questions:
( d ) that also the interest rate applicable to the payment of          1 . Is Article 39 ( 4 ) of Council Regulation ( EEC ) No 822/
      the fine ( 13,25% ) is abnormally high .                               87 (') which provides that the sole criterion for
                                                                             allocating between the various producers the quantities
                                                                             of table wine for distillation is to be a percentage
The appellant finally submits that anti-trust procedures                     based on the yield per hectare where it exceeds a
resulting in the imposition of fines upon companies are                      certain level — leaving aside the possibility of
procedures having criminal character within the meaning                      interaction with other methods, which take into
of the ECHR and that therefore the Court of First
                                                                             account the production stocks at the close of the wine
Instance has infringed :                                                     year, or any other objective criterion — contrary to
                                                                             the principle of proportionality in that it lays down a
                                                                             single unit of measurement which is essentially
( a ) Article 6 ( 3 ) of the ECHR in so far as the 'cause of the
                                                                             restrictive and inappropriate as a means of restoring
      accusation ' has been modified by the Court of First                   market balance ?
      Instance ;
                                                                        2 . Is the fourth indent of Article 4 ( 2 ) of Regulation
( b ) Article 7 ( 1 ) of the ECHR in so far as the Court of
                                                                             ( EEC ) No 441 /88 ( 2 ) which, for the purposes of the
      First Instance has considered that the Appellant could
                                                                             common market in wine, designates the whole of Italy
      be fined, contrary to all existing case-law, for entirely              as a single production region ( Region 4 ) incompatible
      novel    abuses ,    never condemned       before , and   in
                                                                             with the first subparagraph of Article 4(1 ) which lays
      particular:                                                            down that, in designating the production regions,
                                                                             account must also be taken of ' production and
      — its refusal to renounce an exclusivity right granted                 climatic conditions ', and does it in substance
           by the State ;                                                    circumvent the second subparagraph of Article 4 ( 1 )