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26.9.

98 EN Official Journal of the European Communities C 299/23

(c) whether the Court of First Instance was right to (c) even if the Court of First Instance was right to hold
conclude that, in exercise of that choice, the that the Commission had a choice as to whether to
Commission was entitled to address the Cartonboard address the Cartonboard Decision to SCA Holding
Decision to SCA Holding Ltd. Ltd (or to another legal entity), it was wrong not to
take the existence of this choice into account in
reviewing the level of fines imposed on SCA Holding
In summary, SCA Holding Ltd's position on these issues is Ltd. To make SCA Holding Ltd exclusively
as follows: responsible for the infringement when the
Cartonboard Decision could also have been addressed
to, and fines imposed (in whole or in part) on, legal
(a) an issue of succession arises in circumstances where entities belonging to other corporate groups was
an infringement is committed by an undertaking unfair, disproportionate and did not serve to achieve
which, notwithstanding one or more changes of any deterrent effect.
ownership during or after the period of infringement,
maintains functional and economic continuity
throughout the period of infringement and up until (1) OJ C 386, 31.12.1994, p. 15.
the date of the Decision, continues to exist in its (2) OJ L 243, 19.9.1994, p. 1.
essential form at the date of the Decision and has (3) Official Journal, English Special Edition, 1962, p. 87.
legal personality at the date of the Decision. The
Court of First Instance's finding that there was no
issue of succession in this case is based on deficient
reasoning and is contrary to legal principle and the
jurisprudence of the European Courts;

(b) The Court of First Instance erred in law in Appeal brought on 29 July 1998 by Metsä-Serla Sales OY
concluding that the Commission was entitled to (formerly Finnish Board Mills Association Ð Finnboard)
choose, as between entities belonging to different against the judgment delivered on 14 May 1998 by the
corporate groups, which entity should be the Third Chamber (extended composition) of the Court of
addressee of the Cartonboard Decision; First Instance of the European Communities in Case
T-338/94 Finnish Board Mills Association Ð Finnboard
and the Commission of the European Communities
(c) the Court of First Instance's consideration of the
(Case C-298/98 P)
question whether the Commission exercised that
choice correctly was inadequate. Even if (which is (98/C 299/36)
denied) the Commission was entitled to choose which
entity from different corporate groups to make the
addressee of the Cartonboard Decision, the Court of
First Instance erred in law in finding that the An appeal against the judgment delivered on 14 May
Commission's choice could not validly be called into 1998 by the Third Chamber (extended composition) of the
question. Court of First Instance of the European Communities in
Case T-338/94 between Finnish Board Mills Association
Ð Finnboard and the Commission of the European
Fines: Communities was brought before the Court of Justice of
the European Communities on 29 July 1998 by Metsä-
Serla Sales OY (formerly Finnish Board Mills Association
If the Court considers that the Court of First Instance did
Ð Finnboard), represented by Hans Hellmann, Am
not err in holding that SCA Holding Ltd was the correct
Morsdorfer Hof 16, D-50933 Cologne, and Hans-Joachim
(or a correct) address of the Cartonboard Decision, SCA
Hellmann LL.M., Schilling, Zutt & Anschütz, Otto-Beck-
Holding Ltd submits that the Court of First Instance erred
Straûe 42, D-68165 Mannheim, Rechtsanwälte, with an
in the application of its unlimited jurisdiction to review
address for service in Luxembourg at the Chambers of
the fine imposed on it by the Commission, contrary to
Loesch & Wolter, 11 Rue Goethe, B.P. 1107, L-1011
Article 172 of the Treaty and Article 17 of Council
Luxembourg.
Regulation No 17 (3). SCA Holding Ltd makes three pleas
in this part of its appeal:

The appellant claims that the Court should:
(a) the Court of First Instance erred in law in finding
that the position adopted by SCA Holding Ltd during
the Commission's administrative procedure did not
justify a reduction of the fine imposed on it; 1. Set aside the judgment of the Court of First Instance
of 14 May 1998 in Case T-338/94 Finnboard v.
Commission, save and except paragraph 1 of the
(b) the Court of First Instance erred in law in finding operative part thereof allowing the application in
that the defective reasoning of the Decision in regard to the declaration of nullity of Article 2(1) to
relation to the fines imposed did not justify the (4) of the Decision, and give final judgment in the case
annulment or reduction of SCA Holding Ltd's fine; as follows.
C 299/24 EN Official Journal of the European Communities 26.9.98

1. The Commission Decision of 13 July 1994 relating Appeal brought on 31 July 1998 by CPL Imperial 2 SpA
to a proceeding under Article 85 of the Treaty and Unifrigo Gadus Srl against the judgment delivered on
(IV/C 33.833 Ð Cartonboard) notified to the 9 June 1998 by the Third Chamber of the Court of First
appellant on 5 August 1994 and published in the Instance of the European Communities in Joined Cases
Official Journal of the European Communities on T-10/97 and T-11/97 between Unifrigo Gadus Srl and
19 September 1998 is void in so far as it concerns CPL Imperial 2 SpA and the Commission of the European
the appellant, Communities
(Case C-299/98 P)
or, in the alternative,
(98/C 299/37)
the fine is reduced.
An appeal against the judgment delivered on 9 June 1998
2. Order the Commission to pay the costs of the by the Third Chamber of the Court of First Instance of the
proceedings. European Communities in Joined Cases T-10/97 and T-11/
97 Unifrigo Gadus Srl and CPL Imperial 2 SpA v. the
2. In the further alternative: Commission of the European Communities was brought
before the Court of Justice of the European Communities
on 31 July 1998 by CPL Imperial 2 SpA, established in
set aside the contested judgment and refer the case Pescara (Italy), and Unifrigo Gadus Srl, established in
back to the Court of First Instance for judgment. Naples (Italy), represented by Giuseppe Celona, of the
Milan Bar, with an address for service in Luxembourg at
Pleas in law and main arguments adduced in support: the Chambers of Georges Margue, 20 Rue Philippe II.

Ð Infringement of the obligation to give reasons for The appellant claims that the Court should:
decisions in individual cases under Article 190 of the
EC Treaty: the Court of First Instance found an Ð allow the appeal,
infringement of the obligation to state reasons in
regard to the criteria for determining and calculating
Ð set aside the judgment delivered on 9 June 1998 by the
the amount of the fine, but did not reach the
Third Chamber of the Court of First Instance in
mandatory legal conclusion that the decision was void.
Joined Cases T-10/97 and T-11/97, and consequently
The Court thereby wrongly laid down legal rules for
annul the Commission's decision of 8 October 1996,
the future without applying them in the case before it.
As it is a matter of the objective application of the
law, no significance can be attributed to the in the alternative:
Commission's subjective knowledge at the time when
it adopted its decision, Ð declare that that decision does not have the effect of
establishing whether or not the conditions for waiver
Ð error in exercising discretion when interpreting and of the right to recover post-clearance duties in
applying Article 15(2) of Council Regulation No 17: question were fulfilled, which it is for the national
the grant of two-thirds reductions in the fine for an court to decide,
admission' or one third for a failure to contest' the
essential allegations is devoid of any legal basis and in any event
infringes fundamental rights of defence of the parties
concerned,
Ð order the Commission to pay the costs of the appeal.

in the alternative:
Pleas in law and main arguments adduced in support:

Ð when interpreting and applying Article 15(2) of The judgment of the Court of First Instance is challenged
Regulation No 17 in regard to the turnover relevant by CPL Imperial 2 SpA and Unifrigo Gadus Srl on the
for calculating the fines the Court included the following grounds:
turnover of third party undertakings and thereby erred
in law,
Ð breach of the rights of the defence, since the Court of
First Instance found that it was not necessary for the
Ð error of law in applying Article 15(2) of Regulation Commission to ascertain whether the case submitted
No 17, having regard to the absence of effects of price to it contained all the information necessary for
collusion on the market, consideration of the case, especially since the parties
concerned played absolutely no part in the
Ð error of appraisal and discrimination in arbitrarily proceedings,
rounding up the fine after applying the calculation
method under Article 15(2) of Regulation No 17. Ð breach of Article 5(2) of Council Regulation (EEC)
No 1697/79 (1) and Article 220(2)(b) of Council
Regulation (EEC) No 2913/92 (2), by introducing a