CELEX: C1998/299/27
Language: en
Date: 1998-09-26 00:00:00
Title: Appeal brought on 27 July 1998 by Stora Kopparbergs Bergslags AB against the judgment delivered on 14 May 1998 by the Third Chamber, extended composition, of the Court of First Instance of the European Communities in Case T-354/94 between Stora Kopparbergs Bergslags AB and the Commission of the European Communities (Case C-286/98 P)

C 299/16               EN                  Official Journal of the European Communities                                           26.9.98
Appeal brought on 24 July 1998 by Mo och Domsjö                       2.    incorrectly held that its own conclusion that the
Aktiebolag against the judgment delivered on 14 May                         Commission had failed to prove all the alleged effects
1998 by the Third Chamber, extended composition, of the                     of the infringement could not materially affect its
Court of First Instance of the European Communities in                      assessment of the gravity of the infringement and
Case T-352/94 (1) between Mo och Domsjö Aktiebolag                          thus could not lead to a reduction in the fine.
     and the Commission of the European Communities
                        (Case C-283/98 P)                             (1) OJ C 392, 31.12.1994, p. 8.
                                                                      (2) OJ L 243, 19.9.1994, p. 1.
                          (98/C 299/26)                               (3) Council Regulation No 17 of 6 February 1962, first
                                                                          Regulation implementing Articles 85 and 86 of the Treaty
                                                                          (Official Journal, English Special Edition, 1962, p. 87).
An appeal against the judgment delivered on 14 May
1998 by the Third Chamber, extended composition, of the
Court of First Instance of the European Communities in
Case T-352/94 between Mo och Domsjö Aktiebolag and
the Commission of the European Communities, was
brought before the Court of Justice of the European
Communities on 24 July 1998 by Mo och Domsjö                          Appeal brought on 27 July 1998 by Stora Kopparbergs
Aktiebolag, whose registered address is at S-89180                    Bergslags AB against the judgment delivered on 14 May
Örnsköldsvik, Sweden, represented by Antony Woodgate                  1998 by the Third Chamber, extended composition, of the
and Martin Smith, Solicitors, of Simmons & Simmons,                   Court of First Instance of the European Communities in
London, with an address for service in Luxembourg at the              Case T-354/94 (1) between Stora Kopparbergs Bergslags
Chambers of Arendt & Medernach, 8Ð10, rue Mathias                        AB and the Commission of the European Communities
Hardt.
                                                                                              (Case C-286/98 P)
The appellant claims that the Court should:                                                     (98/C 299/27)
(i)   annul the judgment of the Court of First Instance of            An appeal against the judgment delivered on 14 May
      14 May 1998 in Case T-352/94 at least in part;                  1998 by the Third Chamber, extended composition, of the
                                                                      Court of First Instance of the European Communities in
(ii) annul Commission Decision 94/601/EC of 13 July                   Case T-354/94 between Stora Kopparbergs Bergslags AB
      1994 relating to proceedings under Article 85(1) of             and the Commission of the European Communities, was
      the EC Treaty (IV/C/33.833 Ð Cartonboard (2)) in so             brought before the Court of Justice of the European
      far as it relates to the appellant at least in part;            Communities on 27 July 1998 by Stora Kopparbergs
                                                                      Bergslags AB, whose registered address is at S-79180
                                                                      Falun, Sweden, represented by Alexander Riesenkampff
(iii) cancel or at least reduce the amount of the fine                and Stefan Lehr, Rechtsanwälte, of Hasche Eschenlohr
      imposed on the Appellant;                                       Peltzer Riesenkampff Fischötter, Brussels, with an address
                                                                      for service in Luxembourg at the Chambers of ReneÂ Faltz,
                                                                      Faltz & Kremer, 6, rue Heinrich Heine.
(iv) order the Commission to pay the Appellant's costs
      before this Court and before the Court of First
      Instance.
                                                                      The appellant claims that the Court should:
Pleas in law and main arguments adduced in support:
                                                                      Ð set aside the judgment of the Court of First Instance of
                                                                           14 May 1998 in Case T-354/94 and annul
The appellant relies on grounds of appeal based on an                      Commission Decision 94/601/EC of 13 July 1994
infringement of Community law in particular of                             relating to proceedings under Article 85(1) of the EC
Articles 85, 172, 173 and 190 of the EC Treaty and of                      Treaty (IV/C/33.833 Ð Cartonboard (2)) because the
Council Regulation No 17 (3) and of the general principles                 Court of First Instance's conclusions were made on the
of Community law.                                                          basis of substantive errors of Community law which:
The appellant raises grounds of appeal including that the                  (i)   infringe Articles 85 and 15(2) of Council
Court of First Instance:                                                         Regulation No 17 (3) in that the appellant is held
                                                                                 responsible for the conduct of its subsidiaries
                                                                                 Kopparfors, Feldmühle and CBC without regard
1.    incorrectly held that the Commission's failure to set
                                                                                 to the legal criteria developed by the European
      out in the decision the factors of which it had
                                                                                 Courts and the Commission for the imputation
      systematically taken account when fixing the
                                                                                 of infringements committed by subsidiaries;
      appellant's fine was not an infringement of the duty
      to state reasons such as would justify annulment in
      whole or in part of the decision and of the fine                     (ii)  infringe the rules regarding the burden of proof
      imposed;                                                                   in that, with respect to the imputation of the
 ---pagebreak--- 26.9.98                EN                Official Journal of the European Communities                                         C 299/17
           infringements committed by Kopparfors, the                     in the infringement and failed to adopt appropriate
           burden of proof is imposed on the appellant and,               measures in order to prevent the continuation of the
           with respect to Feldmühle and CBC, mere                        infringement;
           assumptions are relied on to the detriment of the
           appellant;
                                                                    (iii) held that the Commission's failure to set out in the
     (iii) violate the principle that punishment requires                 Decision the factors of which it had systematically
           fault in that, without any basis in the facts of the           taken account when fixing the appellant's fine was
           case, an assumption is made that the appellant                 not an infringement of the duty to state reasons such
           must have been aware of Feldmühle's and CBC's                  as would justify annulment in whole or in part of the
           participation in the cartel;                                   fine imposed,
     (iv) offend the laws of logic in that the appellant is         and, further and in the alternative, that it erred in law in
           held to be under an obligation to take measures          that it:
           against infringements committed by Feldmühle
           and CBC of which it was not even aware and
           without regard to the fact that the appellant,           (iv) held that its own conclusion that the Commission
           even if he had been aware thereof, did not have                had failed to prove all the alleged effects of the
           the power to implement such measures;                          infringement could not materially affect its
                                                                          assessment of the gravity of the infringement and
     (v)   infringe the rules regarding the burden    of proof            thus could not lead to a reduction in the fine.
           and the principle in dubio pro reo in      that the
           appellant is required to prove that it      did not      (1) Not yet published.
           continue the infringing conduct             of its       (2) OJ L 243, 19.9.1994, p. 1.
           subsidiaries;                                            (3) Official Journal, English Special Edition, 1962, p. 87.
     (vi) violate     essential   procedural     requirements
           pursuant to Articles 173 and 190 in that the fine
           imposed on the appellant is not annulled
           although it is acknowledged in the judgment that
           the criteria applied in calculating the individual
           amount of the fine should have been disclosed in         Reference for a preliminary ruling by the Tribunal
           the Decision.                                            d'Arrondissement, Luxembourg, by order of that court of
                                                                    15 July 1998 in the case of the State of the Grand Duchy
                                                                                  of Luxembourg v. Linster and Others
Ð Alternatively, the fine imposed on Stora must be
     annulled or at least reduced because the Court of First                                 (Case C-287/98)
     Instance made on the basis substantive errors of                                          (98/C 299/28)
     Community law which:
     vii) violate Article 15(2) of Regulation No 17 in that
                                                                    Reference has been made to the Court of Justice of the
           the Commission's failure to fully prove the
                                                                    European Communities by an order of the Tribunal
           effects of the collusion on prices is held not to
                                                                    d'Arrondissement (District Court), Luxembourg, of 15 July
           materially affect the assessment of the gravity of
                                                                    1998, which was received at the Court Registry on 27 July
           the infringement.
                                                                    1998, for a preliminary ruling in the case of the State of
                                                                    the Grand Duchy of Luxembourg v. Linster and Others,
                                                                    on the following questions:
Pleas in law and main arguments adduced in support:
                                                                    1. Must Articles 177 and 189 of the EC Treaty be
It is submitted that the Court of First Instance erred in                interpreted as meaning that a court against whose
law in that it:                                                          decisions there is no judicial remedy under national
                                                                         law and which is called on to verify the legality of a
                                                                         procedure for the expropriation on grounds of public
(i)   held that infringements of Article 85 committed by
                                                                         utility of immovable property belonging to a private
      its subsidiary Kopparfors must be imputed to the
                                                                         individual may find that the assessment of the impact
      appellant without regard to the Commission's failure
                                                                         of the construction of a motorway required by
      to establish whether the appellant had exercised any
                                                                         Article 5(1) of Council Directive 85/337/EEC of
      influence on Kopparfors' commercial policy;
                                                                         27 June 1985 (1) on the assessment of the effects of
                                                                         certain public and private projects on the environment,
(ii) disregarded the relevant case-law when it held that                 being a project of the kind referred to in Article 4(1)
      infringements committed by Feldmühle and CBC                       thereof, has not been carried out and that the
      prior to and after their acquisition by the appellant              information obtained in accordance with Article 5 has
      must be imputed to the appellant because the                       not been made available to the public and that the
      appellant could not be unaware of their participation              members of the public concerned have not had an