CELEX: C2000/006/49
Language: en
Date: 2000-01-08 00:00:00
Title: Case T-225/99: Action brought on 8 October 1999 by Comafrica SpA and Dole Fresh Fruit Europe Ltd & Co. against the Commission of the European Communities

C 6/26                EN                     Official Journal of the European Communities                                       8.1.2000
Action brought on 7 October 1999 by the European                        It still submits that the exemption in question cannot satisfy
Council of Transport Users ASBL against the Commission                  the condition that shippers should enjoy a fair share of the
                of the European Communities                             alleged economic benefits since the clear intention of the
                                                                        revised TACA provisions is to increase prices for through
                                                                        transport and, in particular, maritime transport. Even if
                        (Case T-224/99)                                 the exempted provisions were indispensable for the alleged
                                                                        stability benefit, they would have the effect of eliminating
                                                                        effective competition on through transport rates.
                         (2000/C 6/48)
                                                                        Moreover, the Multi-modal Group Report makes it clear,
                                                                        according to the applicant, that the Commission has to
                  (Language of the case: English)                       investigate a number of crucial issues and, in particular,
                                                                        ensure that there are sufficient safeguards for shippers before
                                                                        considering authorising any not-below-cost rule. However, the
An action against the Commission of the European Communi-               Commission has failed to consider these relevant issues and
ties was brought before the Court of First Instance of the              therefore, its reasoning in the contested decision is to be
European Communities on 7 October 1999 by the European                  considered as defective.
Council of Transport Users ASBL, represented by Mark Clough
QC, with an address for service in Luxembourg at the office of          The applicant further claims that the defendant institution has
Aloyse May, 31 Grand Rue.                                               misused its powers or acted outside its competence by
                                                                        effectively granting an exemption under Regulation
                                                                        Nos 4056/86 for a form of price fixing intended to enhance
The applicant claims that the Court should:                             the price fixing in the maritime transport, when inland
                                                                        transport should fall outside that regulation.
— annul the Commission Decision;
                                                                        Finally, the contested decision should not have followed the
                                                                        procedure applicable to complaints under Articles 10 and
— order the Commission to pay the applicant’s costs;                    11(3) of Regulations 1017/68 and 4056/86.
— take any measures of preliminary enquiry that the Court
     may consider necessary.
Pleas in law and main arguments
                                                                        Action brought on 8 October 1999 by Comafrica SpA
                                                                        and Dole Fresh Fruit Europe Ltd & Co. against the
The present application concerns the Commission’s decision                        Commission of the European Communities
not to raise serious doubts under Article 12(3) of Regulation
No 1017/68 in respect of the provisions in the revised                                            (Case T-225/99)
Trans-Atlantic Conference Agreement (TACA) falling within
the scope of Regulation No 1017/68. As a consequence of this
act, the not-below-cost rule in Article 10 and related provisions                                  (2000/C 6/49)
of the revised TACA enjoy an individual exemption for three
years until 5 May 2002. The exemption authorises the TACA
lines to agree not to resell the inland transport services which                           (Language of the case: English)
they purchase in Europe below the out-of-pocket ‘costs’ of
purchasing that transport.
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 8 October 1999 by Comafrica SpA
The applicant submits first at all that the contested act does          and Dole Fresh Fruit Europe Ltd & Co., represented by Bernard
not satisfy any of the conditions for individual exemption              O’Connor, Solicitor, and Bonifacio Garcı́a Porras, with an
contained in Article 5 of Regulation Nos 1017/68 and their              address for service in Luxembourg at the office of Arsene
equivalent in Article 81(3) of the EC Treaty. In particular, the        Kronshagen, 22 rue Marie Adelaide.
Commission’s decision is contrary to previous decisions and
to the conclusions of the 1997 Multi-modal Group report
presented to Commissioner Van Miert. These should have                  The applicants claim that the Court should:
made clear that the liner Conference inland transport price
fixing provides no economic benefits (in particular, the alleged        — declare void, pursuant to Articles 230 and 231 EC, Com-
stability of maritime transport liner conference tariffs) and                mission Regulation (EC) No 1586/99 fixing the reduction
that, even if there were to be such a benefit, the restrictions of           coefficient for the determination of the quantity of bananas
competition would not be indispensable to its achievement.                   to be allocated to each operator for 1999;
 ---pagebreak--- 8.1.2000              EN                     Official Journal of the European Communities                                        C 6/27
— order the Commission, pursuant to Articles 235 and 288                Action brought on 11 October 1999 by Kvaerner War-
    EC, to make good any damage, and interest thereon, caused           now Werft GmbH against the Commission of the Euro-
    to the applicants, by the wrongful adoption of Regulation                                  pean Communities
    No 1586/99;
                                                                                                 (Case T-227/99)
— declare that the Commission pay the cost incurred in the
    making of the application.                                                                    (2000/C 6/50)
                                                                                          (Language of the case: German)
Pleas in law and main arguments
                                                                        An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 11 October 1999 by Kvaerner
The present application concerns the administration by the              Warnow Werft GmbH, of Rostock-Warnemünde, Germany,
Commission of the rules governing the allocation of the annual          represented by Dr Michael Schütte, of Bruckhaus Westrick
licence entitlement to the applicants for the import of bananas         Heller Löber, Brussels, with an address for service in Luxem-
within the third country tariff rate quotas established by              bourg at the Chambers of Bonn & Schmitt, 7 Val Ste Croix.
Article 18 of Council Regulation (EEC) No 404/93 of 13 Feb-
ruary 1993 and as substantially amended by EC Regulation
No 1637/98 of 20 July 1998. The application arises actually             The applicant claims that the Court should:
out of the adoption, by the Commission, of a reduction
coefficient based on a pretended incorrect reference quantity           1. Annul the Commission’s decision of 8 July 1999,
figure which reduces the applicants’ licence entitlement for the
1999 marketing year.
                                                                            in the alternative: annul the Commission’s decision in so
                                                                            far as the Commission wrongly used as basis of the
                                                                            calculation of the demand for repayment a total amount
The applicants put forward the following submissions:                       of aid approved of DEM 1 246,9 million (less 27 million
                                                                            aid on closure) instead of the total amount of the operating
                                                                            aid actually granted;
— The definitive reference quantity for 1999 is incorrect. As
    a matter of fact, the Commission knew, when it adopted              2. Order the Commission to pay the costs.
    the definitive reduction coefficient for 1999, that the
    quantities of bananas actually imported or licences used
    were substantially lower than the reference quantities
                                                                        Pleas in law and main arguments
    claimed by the operators;
                                                                        In the contested decision, addressed to Germany, aid by
— Allowing double counting or overclaims of 4 % or 3 % to               Germany in favour of the applicant in the amount of EUR 41,5
    occur is not a case of Commission exercising a discretion.          million was declared to be incompatible with the common
    It has no discretion, only a duty to determine the reduction        market under Article 87(1) EC. In a number of previous
    coefficient in accordance with the law, and it has acted in         decisions the Commission had made a restriction of the
    breach of that duty;                                                applicant’s annual shipbuilding capacity a condition of the
                                                                        approval of the aid. It now reaches the conclusion that the
                                                                        applicant failed to comply with those restriction obligations.
— The Commission did not correctly apply the rules when it              To the extent that the approved capacity was exceeded,
    knowingly accepted a 4 % or 3 % overstatement of the                therefore, the aid is no longer consistent with Community law.
    reference quantity. Furthermore, the Commission cannot
    justify these errors by stating that it has difficulties in
    establishing the precise quantities of bananas which had            The applicant contests the decision on the following grounds:
    been imported. The calculation of the 1999 reduction
    coefficient no longer refers to quantities of bananas                   Breach of essential procedural require-
    marketed during the years preceding the common organi-                  ments
    sation of the market but on the basis of the bananas
    actually imported or on the basis of the licences used
    during 1994, 1995 and 1996.                                         — At the time when the contested decision was voted on, the
                                                                            Commission was irregularly composed, since there was no
                                                                            legal basis for the ’suspension’ of Mr Bangemann. In
                                                                            addition, two members of the Commission, namely Com-
                                                                            mission President Santer and Mrs Bonino, had already
                                                                            been elected to the European Parliament, that being
                                                                            incompatible with their membership of the Commission.