# C_2009082EN.01003401.xml

| 4.4.2009 | EN | Official Journal of the European Union | C 82/34 |
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4.4.2009

EN

Official Journal of the European Union

C 82/34

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Action brought on 11 February 2009 — Schemaventotto v Commission

(Case T-58/09)

(2009/C 82/59)

Language of the case: Italian

Parties

Applicant: Schemaventotto SpA (Milan, Italy) (represented by: M. Siragusa, G. Scassellati Sforzolini, G.C. Rizza, M. Piergiovanni, lawyers)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Forms of order sought

| — | Annul the decision(s) contained in the letter of 13 August 2008, File No C(2008) 4494, from Commissioner Kroes, for and on behalf of the European Commission, to the Italian authorities, and relating to a proceeding under Article 21 of [Regulation No 139/2004] on the control of concentrations between undertakings (Case COMP/M.4388 — Abertis v Autostrade); and |
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Annul the decision(s) contained in the letter of 13 August 2008, File No C(2008) 4494, from Commissioner Kroes, for and on behalf of the European Commission, to the Italian authorities, and relating to a proceeding under Article 21 of [Regulation No 139/2004] on the control of concentrations between undertakings (Case COMP/M.4388 — Abertis v Autostrade); and

Abertis

Autostrade

| — | Order the Commission to pay the costs incurred by the applicant in the present proceedings. |
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Order the Commission to pay the costs incurred by the applicant in the present proceedings.

Pleas in law and main arguments

The present action contests the decision contained in Commissioner Kroes' letter of 13 August 2008, by which — according to the applicant — the Commission notified the Italian authorities of its intention not to pursue Case COMP/M.4388 Abertis v Autostrade under Article 21 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the Regulation’). Indeed, the Commission approves the regulatory measures relating to the authorisation procedures for the ‘transfer’ of motorway concessions (Ministerial Directive of 2007 and Decree of 2008). However, in the above-mentioned letter, the Commission reserves its position as to whether the Italian regulatory framework relating to the authorisation procedure for the transfer of motorway concessions is compatible with the rules governing the internal market.

Abertis

Autostrade

In support of its claims, the applicant alleges infringement of Article 21 of the regulation on concentrations, on the following grounds:

| — | The Commission may in no circumstances refer to amendments made to the relevant regulatory framework after 31 January 2007, the date of the preliminary assessment. Since the Commission's powers of assessment under Article 21(4) of the Regulation are closely linked to the context of the assessment of a specific concentration with a Community dimension, with which the national measures at issue are concerned, subsequent amendments to the regulations could not have any effects on the earlier conduct of the Italian authorities, which led the parties to abandon the transaction in December 2006, three months after it was authorised under Article 6(1)(b) of the Regulation. |
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The Commission may in no circumstances refer to amendments made to the relevant regulatory framework after 31 January 2007, the date of the preliminary assessment. Since the Commission's powers of assessment under Article 21(4) of the Regulation are closely linked to the context of the assessment of a specific concentration with a Community dimension, with which the national measures at issue are concerned, subsequent amendments to the regulations could not have any effects on the earlier conduct of the Italian authorities, which led the parties to abandon the transaction in December 2006, three months after it was authorised under Article 6(1)(b) of the Regulation.

| — | The applicant alleges that the Commission acted ultra vires or misused its powers, in so far as the legal basis chosen for the contents of the specific Decision ‘not to pursue’ the Italian measures at issue is inadequate. It is submitted in that connection that, by deciding that the amendments which had meanwhile been made to the regulatory framework would ensure that there would be no grounds in future for the misgivings expressed in its preliminary assessment of 31 January 2007, the Commission has adopted under Article 21 of the Regulation a type of decision which that provision does not envisage. In fact, the Commission has used the powers conferred upon it under Article 21 to declare compatible with Community law certain measures of general application adopted by a Member State, which have nothing to do with the specific concentration which Italy's adoption of the national measures at issue was intended to block. |
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The applicant alleges that the Commission acted ultra vires or misused its powers, in so far as the legal basis chosen for the contents of the specific Decision ‘not to pursue’ the Italian measures at issue is inadequate. It is submitted in that connection that, by deciding that the amendments which had meanwhile been made to the regulatory framework would ensure that there would be no grounds in future for the misgivings expressed in its preliminary assessment of 31 January 2007, the Commission has adopted under Article 21 of the Regulation a type of decision which that provision does not envisage. In fact, the Commission has used the powers conferred upon it under Article 21 to declare compatible with Community law certain measures of general application adopted by a Member State, which have nothing to do with the specific concentration which Italy's adoption of the national measures at issue was intended to block.

ultra vires

| — | By considering that the Italian regulatory framework, as amended, has been made compatible with Community law, the Commission has failed to take into account the fresh uncertainties which have arisen in the Italian legal system as a result of those national measures, which have certainly not helped to establish a favourable environment for any future concentrations concerning the Italian market in motorway concessions. In addition, the regulations adopted by the Italian Administration in 2007 and 2008 must in any event also be said to be contrary to Article 21 [of the Regulation] in so far as they impose more extensive obligations for a ‘transfer’ of a motorway concession than those to which the interested parties would otherwise be subject. |
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By considering that the Italian regulatory framework, as amended, has been made compatible with Community law, the Commission has failed to take into account the fresh uncertainties which have arisen in the Italian legal system as a result of those national measures, which have certainly not helped to establish a favourable environment for any future concentrations concerning the Italian market in motorway concessions. In addition, the regulations adopted by the Italian Administration in 2007 and 2008 must in any event also be said to be contrary to Article 21 [of the Regulation] in so far as they impose more extensive obligations for a ‘transfer’ of a motorway concession than those to which the interested parties would otherwise be subject.

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