# C_2004262EN.01005302.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/53 |
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23.10.2004

EN

Official Journal of the European Union

C 262/53

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Action brought on 11 August 2004 by France Télécom S.A. against the Commission of the European Communities

(Case T-340/04)

(2004/C 262/98)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 August 2004 by France Télécom S.A., established in Paris, represented by Christophe Clarenc and Javier Ruiz Calzado, lawyers.

The applicant claims that the Court should:

| — | annul Commission Decision C (2004) 1929 of 18 May 2004 ordering France Télécom S.A. and all undertakings directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(4) of Regulation No 1/2003 (Case No COM/C-38.916); |
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annul Commission Decision C (2004) 1929 of 18 May 2004 ordering France Télécom S.A. and all undertakings directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(4) of Regulation No 1/2003 (Case No COM/C-38.916);

| — | order the Commission to pay in full the costs incurred by France Télécom in bringing the present action for annulment. |
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order the Commission to pay in full the costs incurred by France Télécom in bringing the present action for annulment.

Pleas in law and main arguments:

The subject matter of the decision in question is ‘the suspected imposition of unfair selling prices in respect of high-speed Internet access for residential customers, contrary to Article 82 EC, with the intention of restricting and deterring competitors’ (Article 1 of the contested decision) and applies to the applicant and its subsidiary Wanadoo, and all undertakings directly or indirectly controlled by them (Article 3). The Commission considered that in order to confirm the alleged practices an inspection was required pursuant to Article 20(4) of Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1). It is the decision ordering that inspection which is challenged in the present case.

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In support of the form of order it seeks, the applicant first alleges that there has been a breach of the duty to state reasons. It states in this connection that it fails to understand why it is the addressee of the decision and it is the subject of that inspection. It points out that in accordance with the reasoning of its ‘Wanadoo’ decision of 16 July 2003, which recognised Wanadoo's independence from the applicant in its policy of fixing prices for the French residential market for high-speed internet access services, the Commission in its decision imputes to Wanadoo, and not to France Telecom, the allegedly unfair sale prices in question, and the alleged strategy of deterring competitors. Moreover, the Commission failed to explain why it found it necessary to order an inspection in respect of Wanadoo's selling prices, in spite of the fact that those prices are to be maintained by it under its decision of 16 July 2003 and furthermore had just been inspected and approved by the French competition authority.

Second, the applicant complains that the contested decision disregarded the requirements of the principle of sincere cooperation which applies to the European Commission in its relations with national institutions, as established under Article 10 EC and set out in Regulation (EC) No 1/2003, first, by failing to inform the national court in full of the background to the case, then, by failing to consult the French competition authority, as provided in Article 11(6) of that regulation, even though the matter had been brought before it in January 2004.

Third and finally, the applicant alleges an infringement of the principle of proportionality both in light of the apparent objective of the inspection and the background to it and the complete lack of evidence of the existence of a risk that evidence will be concealed or destroyed.

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(1)  OJ 2003 L 1, of 4.1.2003, p. 1.

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