Notice for the OJ

 

    

Action brought on 7 February 2002 by Sumitomo Chemical Co., Ltd against the Commission of the European Communities

    (Case T-22/02)

    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 7 February 2002 by Sumitomo Chemical Co., Ltd, represented by Mr Martin Klusmann and Ms Vanessa Turner of Freshfields Bruckhaus Deringer, Düsseldorf (Germany).

The applicant claims that the Court should:

listnum "WP List 1" \l 1annul the defendant's Decision C(2001)3695-final of 21 November 2001 in Case No. COMP/E-1/37.512 - Vitamins as far as Sumitomo Chemical Company is concerned

listnum "WP List 1" \l 1order the defendant to pay the costs.

Pleas in law and main arguments:

The contested Decision in the present case is the same as in case T-15/02 BASF/Commission¹.

In support of its conclusions, the applicant submits that:

- The Commission was time-barred from taking the prohibition Decision. Contrary to the defendant's view that the rules on limitation periods have no bearing on the entitlement of the defendant to investigate cartel cases and to adopt prohibition Decisions, the rules on limitation in Regulation No. 2988/74² should be considered applicable to declaratory prohibition decisions.

- The adoption of a prohibition decision is time-barred under general principles of Community Law. It is stated in this regard that where there is no doubt that the alleged conduct was terminated more than five years before an investigation was opened, there is no need and no justification for a declaratory decision, because there is no place for a cease and desist order, as contained in Article 2 of the contested Decision, or any other form of penalty to be imposed on the applicant by the defendant. Alternatively, the rationale for limitation periods in the European Union is that after a certain period of time it is in the interest of the proper functioning of the legal system that infringements of the law should no longer be investigated or lead to any form of "punishment" of the party concerned.

- The defendant was not competent within the meaning of the second paragraph of Article 230 EC to adopt the contested Decision, as it thereby exceeded its powers under the Treaty and Regulation No. 17/62. The defendant is not empowered by Article 3 of Regulation No. 17, or by any other provision, to adopt a declaratory decision where the infringement has already been terminated outside the limitation period provided for in Article 1 of Regulation No. 2988/74.

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¹ - Notice not yet published in the OJ.

² - Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of actions under the rules of the European Economic Community relating to transport and competition (OJEC L 319, 29.11.1974, p. 1).