# C_2005082EN.01004401.xml

| 2.4.2005 | EN | Official Journal of the European Union | C 82/44 |
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2.4.2005

EN

Official Journal of the European Union

C 82/44

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Action brought on 25 February 2005 by EDP-Energias de Portugal S.A. against the Commission of the European Communities

(Case T-87/05)

(2005/C 82/78)

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 25 February 2005 by EDP-Energias de Portugal, established in Lisbon (Portugal), represented by C. Botelho Moniz, R. García-Gallardo, A. Weitbrecht and J. Ruiz Calzado, lawyers.

The applicant claims that the Court should:

| — | annul the Commission's Decision of 9 December 2004 in case number COMP/M.3440 EDP/GNI/GDP declaring the concentration by which Energias de Portugal SA and ENI Portugal Investment S.p.A. acquire joint control over Gás de Portugal SGPS S.A. incompatible with the common market; |
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annul the Commission's Decision of 9 December 2004 in case number COMP/M.3440 EDP/GNI/GDP declaring the concentration by which Energias de Portugal SA and ENI Portugal Investment S.p.A. acquire joint control over Gás de Portugal SGPS S.A. incompatible with the common market;

| — | order the Commission to pay the costs of the proceedings including the costs of the applicant. |
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order the Commission to pay the costs of the proceedings including the costs of the applicant.

Pleas in law and main arguments

By the contested decision the Commission declared incompatible with the common market the concentration by which the applicant together with ENI Portugal Investment S.p.A. acquired joint control over Gás de Portugal SGPS S.A., a company whose activities in the gas sector cover all levels of the distribution and supply chain in Portugal.

In support of its application the applicant submits first of all that in conducting the procedure leading up to the contested decision the Commission infringed the principle of good administration and disregarded essential procedural requirements by not granting the applicant sufficient access to the outcome of the market test of the commitments proposed by the parties to the concentration and by failing to make an impartial and diligent assessment of the proposed commitments when evaluating the market test.

The applicant further contends that the Commission also violated its duty under Article 253 EC to provide adequate reasons for its decision, since it relied on information considered confidential and not disclosed to the applicant.

The applicant also invokes the fact that Portugal's gas market qualifies as ‘emergent’ under Article 28(2) of Directive 2003/55 (1) and benefits from a derogation from that directive until April 2007. The applicant considers that by assessing the effects of the concentration on a gas market not open to competition, the Commission infringed the right of the Portuguese government to restructure the gas sector during the derogation period. Further, it alleges that the Commission misapplied the substantive test in Article 2 of Regulation 4064/89 (2) by purporting to evaluate the effects of the proposed concentration at the end of the derogation period, several years later.

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A further violation of that article as well as of the duty to state reasons consists, according to the applicant, in the Commission's failure to assess whether the strengthening of the applicant and of Gás de Portugal's dominant position in the electricity and gas markets would have significantly impeded competition.

Finally, the applicant contends that the Commission violated Article 8(2) and 8(3) of Regulation 4064/89 by concluding that, despite the commitments proposed by the parties, the proposed transaction should be declared incompatible with the common market.

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(1)  Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ L 176 p. 57).

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(2)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ L 257/90 p. 13).

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