EN Official Journal of the European Union C 8/28

Action brought on 15 November 2007 — Ryanair v Commission

(Case T-423/07)

(2008/C 8/50)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin, Ireland) (represented by: E. Vahida, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— To declare in accordance with Article 232 EC that the Commission has failed to act pursuant to its obligations under the EC Treaty by not having defined a position with respect to the applicant's complaint lodged with the Commission on 3 November 2005 followed by a letter of formal notice of 31 July 2007;

— to order the Commission to pay the entire costs, including the costs incurred by the applicant in the proceedings even if, following the bringing of the action, the Commission takes action which in the opinion of the Court removes the need to give a decision or if the Court dismisses the application as inadmissible;

— take such further action as the Court may deem appropriate.

Pleas in law and main arguments

By means of its application, the applicant claims that the Commission has failed to act by not having defined its position, after having been invited to do so under Article 232 EC, on the basis of a complaint filed by the applicant on 3 November 2005, regarding unlawful State aid granted to Lufthansa and its Star Alliance partners through the exclusive use of Terminal 2 of Munich Airport or, in the alternative, anti-competitive discrimination in favour of Lufthansa and its Star Alliance partners, should it be considered that the Munich Airport acted autonomously. The reservation of this Terminal by Munich Airport to the applicant's potential competitors would constitute an abuse of dominance and hence infringement of Article 82 EC.

In support of its first plea, the applicant submits that the Commission was under a duty to carry out a diligent and impartial examination of the complaint in accordance with Council Regulation (EC) 659/1999 (1), Council Regulation (EC) No 1/2003 (2) and Commission Regulation (EC) 773/2004 (3), in order to either adopt a decision declaring that the State measures did not amount to aid within the meaning of Article 87(1) EC, or that those measures were to be classified as aid within the meaning of the said provision but were compatible with the common market under Article 87(2) and (3) EC, or to initiate a procedure under Article 88(2) EC.

In the alternative, the applicant submits that the Commission was required, upon receipt of its subsidiary complaint relating to an alleged abuse of dominance, either to initiate a procedure regarding the subject of the complaint or to adopt a definitive decision rejecting the complaint, after having given the complainant the opportunity to comment.

The applicant further submits that the period of twenty months which elapsed between the applicant's complaint and its letter of formal notice was unreasonably long, and the inaction of the Commission during that period constitutes failure to act within the meaning of Article 232 EC.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83, p. 1).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(3) 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 (Text with EEA relevance) (OJ L 123, p. 18).