Order — ECLI:EU:C:2009:188
Date: 2009-03-25
Language of the case: English
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Concepts: Appeals;Examples of abuse;Admissibility and examination of applications, forms of order sought and pleas in law
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Belgium

Appeal brought on 15 April 2008 by Isabella Scippacercola and Ioannis Terezakis against the judgment of the Court of First Instance (Fifth Chamber) delivered on 16 January 2008 in Case T-306/05: Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities (Case C-159/08 P) Language of the case: English Parties Appellants: Isabella Scippacercola, Ioannis Terezakis (represented by: Mr B. Lombart, avocat) Other party to the proceedings: Commission of the European Communities Form of order sought The appellants claim that the Court should: Set aside the judgment of the Court of First Instance in Case T-306/05 Isabella Scippacercola and Ioannis Terezakis v Commission of the European Communities dismissing their application seeking to annul the Commission Decision dated 2 May 2005 taken pursuant to Article 7(2) of Commission Regulation (EC) No 773/2004 of 7 April 20041 notified to the appellants on 6 February 2008 refusing to open an in-depth investigation concerning the excessive charges levied by the new Athens International Airport of Spata holding a dominant position with respect to the: (a) passenger security charge (b) passenger terminal facility charge (c) charges for car parking services Order that the costs of, and occasioned by these proceedings, and the proceedings of the Court of First Instance, be borne by the Commission. Pleas in law and main arguments The appellants submit that the Court of First Instance failed to establish that the Commission, by declining to examine AIA's security, terminal facilities and car parking charges in relation to their costs and embarking on inconclusive comparisons of AIA's charges with those levied at other European airports not providing competing services for the purposes of Article 82 EC, infringed Community law as laid down in Case 27/76 United Brands v. Commission and that the Court of First Instance infringed Community law by failing to establish that the Commission, first, did not consider all relevant matters of fact which existed at the time the contested decision was adopted as required by case law C-119/97 Ufex and others v. Commission, and, second, based its contested decision on materially incorrect facts vitiated therefore by a manifest error of assessment and misuse of powers. It is argued that the Court of First Instance erred in law by not finding that the Commission made an error of assessment when it considered that the security checks did not constitute an economic activity and that the car parking services did not constitute a relevant market for the purposes of Article 82 EC. With regard to the alleged error of law concerning the application to passengers of a higher terminal facility charge for those on intra-Community and international flights than for those on domestic flights, and the application to passengers on scheduled flights of a terminal facility charge and a security charge which are not applied to those travelling on charter flights, the appellants maintain that the Court of First Instance failed to establish that the Commission declined to take care to ensure that the principle of non discrimination was not infringed by AIA's practices. Finally, it is submitted that the Court of First Instance failed to rule that the Commission departed from established rights and procedures, first, by disregarding the complainants' figures extracted from official sources showing an excessive pricing by AIA, second, by embarking on a comparison between Spata charges and those levied at other European airports which were irrelevant for the purposes of Article 82 EC and, third, by carrying out a request for information sent to AIA in which it failed, inter alia, to examine the construction cost of the airport and the incorporation expenses and set up costs of AIA. ____________ 1 - Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty OJ L 123, p.18