C-282/98

ENSO ESPAÑOLA V COMMISSION

OPINION OF ADVOCATE GENERAL MISCHO delivered on 18 May 2000 *

1. By application lodged on 23 July 1998 4. By the contested judgment the Court of Enso Española SA (hereinafter 'Enso') First Instance upheld Enso's application in appealed against the judgment of the Court part, in that it annulled the Decision in so of First Instance of 14 May 1998 in Enso far as found that Enso had participated in Española v Commission 1(hereinafter 'the the infringement for longer than had in fact contested judgment'), which had ruled on been the case and had colluded in main- its action against Commission Decision taining market shares, and reduced the 94/601/EC of 13 July 1994 relating to a amount of the fine from ECU 3 250 000 proceeding under Article 85 of the EC to ECU 1 200 000, but dismissed the Treaty (IV/C/33.833 — Cartonboard) 2 remainder of the action. (hereinafter 'the Decision').

2. In that decision fines were imposed on 5. For the full statement of the complaints 19 manufacturers supplying cartonboard formulated by Enso against the Decision on the Community market on the ground and the grounds on which the Court that they had infringed Article 85(1) of the considered it should uphold them in part EC Treaty (now Article 81(1) EC). only, I refer you to the contested judgment.

3. In its action before the Court of First Instance, Enso claimed that the Court 6. In its appeal, Enso claims that the Court should annul the Decision in whole or in of Justice should: part or, alternatively, reduce the amount of the fine and order the Commission to pay the costs, including the expenses and inter- est arising from the provision of a bank guarantee or from the possible payment of the whole or part of the fine. I — set aside the contested judgment in so far as concerns the grounds stated and * Original language: French. give due legal effect to the setting aside 1 — Case T-348/94 Enso Española v Commission [1998] ECR II-1875. of that judgment, and give an express 2 — OJ 1994 L 243, p. 1. ruling on the merits or refer the case

(3) in the alternative, set aside the — in the alternative, refer the case back to contested judgment in so far as the Court of First Instance for judg- the Court of First Instance did not ment; order the Commission to pay all the expenses and interest incurred by the applicant at first instance in respect of the provision of a bank guarantee or the possible payment of the whole or part of the fine; — in any event, order the appellant to pay declare that the interest on the fine the costs;

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8. In support of the form of order sought, The first plea: inadequacy of the statement Enso submits the following three pleas: of reasons of the Decision as regards the fixing of the fine

(1) infringement of Community law owing to the misapplication and misinterpre- 10. Since the complaints formulated under tation of Article 190 of the Treaty so this plea are the same as those made by the far as concerns the lack of a statement appellant Mo och Domsjö AB in Case of reasons for the Decision; C-283/98 P, I refer, for a statement of the grounds for rejecting this plea, to the Opinion which I am delivering today in that matter.'

(2) infringement of the principle of equal treatment, since the devaluation of the peseta against the ecu was not taken into account;

19. Indeed, if the Court of Justice were to uphold the plea, it would call in question the non-suspensory effect of actions as 14. Secondly, it must be regarded as a stated in Article 185 of the EC Treaty change to the application brought before (now Article 242 EC) and the enforceabil- the Court of First Instance; such a change is ity of Commission decisions imposing a prohibited under Article 113(2) of the pecuniary obligation on a private indivi- Rules of Procedure of the Court of Justice. dual, as established in Article 192 of the EC Treaty (now Article 256 EC), and the last thing I would do is to suggest that the Court should do so.

15. Before the Court of First Instance the appellant requested that the Commission be ordered to pay the expenses by way of costs.

Costs

16. The Court was right in holding that those expenses were not covered by the 20. If, as I propose, the appellant should definition of costs, within the meaning of fail in all its pleas, Article 69(2) of the Article 91(b) of the Rules of Procedure of Rules of Procedure of the Court of Justice the Court of First Instance. would be applicable.

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