Notice for the OJ

 

Action brought on 11 September 2002 by Cementbouw Handel & Industrie B.V. against the Commission of the European Communities

    (Case T-282/02)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 September 2002 by Cementbouw Handel & Industrie B.V., Amsterdam, Netherlands, represented by W. Knibbeler, Advocaat and O. W. Brouwer, Advocaat.

The applicant claims that the Court should:

- annul Article 1 of the contested Decision;

- annul Article 2 of the contested Decision;

- annul Article 3 of the contested Decision;

- order the Commission to pay the costs.

Pleas in law and main arguments:

The applicant contests Commission Decision C(2002) 2315, of 26 June 2002.

The applicant is active in the building materials sector. In 1999, the applicant and Franz Haniel & Cie GmbH acquired from Ruhrkohle AG its shares in certain factories which were members of the "Coöperatieve verkoop en produktievereniging van kalkzandsteenproducenten" (CVK), a co-operative organization for Dutch calcium silicate producers. According to the contested Decision, the applicant and Franz Haniel thereby gained joint control of CVK. The Decision further states that the second set of commitments offered by the applicant and Franz Haniel are sufficient to ensure that the concentration would be compatible with the common market.

In support of its application, the applicant submits that the Commission has infringed Article 3 of Council Regulation No 4064/89¹. According to the applicant, the Commission erred in concluding that the applicant and Franz Haniel have joint control of CVK. The applicant furthermore claims that the Commission did not provide sufficient evidence for this conclusion and failed to give reasons for it, in breach of Article 253 of the EC Treaty.

The applicant also submits that the Commission has infringed Article 2 of Regulation No 4064/89. According to the applicant, the Commission erred in concluding that the transaction under which the shares in Ruhrkohle AG were acquired by the applicant and Franz Haniel led to a dominant position for CVK on the market for building materials for load-bearing walls in the Netherlands. Nor, the applicant claims, did the Commission provide sufficient evidence in support of this conclusion or provide a statement of its reasons for it, in breach of Article 253 of the EC Treaty.

The applicant finally claims that Article 3 and 8(2) of Regulation 4064/89 were misapplied, and the principle of proportionality was breached by the Commission's failure to accept the first set of commitments submitted by the applicant and Franz Haniel.

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¹ - Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 395, p. 1)(republished in OJ 1990, L 257, p.13)