EN Official Journal of the European Union C 346/53

Action brought on 22 October 2010 — TI Media Broadcasting and TI Media v Commission

(Case T-501/10)

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2010/C 346/104

Language of the case: Italian

Parties

Applicants: Telecom Italia Media Broadcasting Srl (TI Media Broadcasting) (Rome, Italy) and Telecom Italia Media SpA (TI Media) (Rome, Italy) (represented by: B. Caravati di Toritto, L. Sabelli, F. Pace and A. d'Urbano, lawyers)

Defendant: European Commission

Form of order sought

— Declare that the contested decision in unlawful and annul the decision in so far as it authorised SKY to participate in the digital dividend tendering procedure;

— In the alternative, order the Commission to: (i) state the Lot for which SKY is permitted to submit a tender in the procedure; (ii) extend the five-year ban on the use of frequencies for Pay TV purposes also to those acquired under agreements with existing operators or new entrants;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant companies in the present proceedings seeks the annulment of Commission Decision C(2010) 4976 of 20 July 2010 (the Decision) relating to the amendment of Clause 9.1 of the Commitments annexed to the Decision of 2 April 2003 (Case COMP/M.2876) by which the Commission declared that the concentration brought about by the creation of ‘SKY Italia’ (‘SKY’) was compatible with the common market and the EEA Agreement.

It should be noted in that connection that the clause in question required SKY to refrain from acquiring analogue and digital frequencies and no to engage in any activities on the digital terrestrial platform either as a network operator or as a content provider before 31 December 2011. By the contested decision, the Commission granted SKY’s request, allowing it to participate in the tendering procedure for the allocation of digital dividend by submitting a bid for the award of only one multiplex intended to distribute content in unencoded form for a period of five years from the adoption of the decision itself.

In support of their claims, the applicants rely on the following grounds: infringement of Articles 2, 6, and 8(2) of Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, (1) paragraph 74 of the Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004, (2) Clause No 14.1 of the Commitments annexed to the Decision of 2 April 2003 (Case COMP/M.2876) and Article 102 TFEU.

The contested decision is vitiated by misuse of power and failure to state reasons in so far as it grants a request the content of which goes beyond the objective scope of the Clause 9.1 of the Commitments annexed the 2003 Decision (Case COMP/M.2876), thereby permitting SKY to participate in a public tendering procedure for the allocation of digital dividend.

The applicants also maintain that, by infringing essential procedural requirements and distorting the facts, the Commission made an incorrect assessment of the exceptional circumstances capable of justifying the amendment of the commitments originally imposed on SKY. In particular, by putting forward arguments concerning anomalous features which characterise the competitive procedure in question, the Commission equated TI Media with the incumbents RAI and Mediaset, even though no notification of a dominant position had ever been made in respect of TI Media. In order to substantiate such obiter dictum concerning the purported ‘strong position’ of TI Media on the market, the Commission relied on a misinterpretation of Decision 544/07/CONS, totally failing to take account of the results of the market test.

Lastly, the applicants submit that the Decision is unlawful on grounds of failure to investigate adequately and to state reasons, in so far as, with regard to the definition of the criteria for the award of the contract, it was based on an incorrect and misleading interpretation of the content of Decisions 181/09/CONS and 427/09/CONS. Contrary to the claims made by the Commission, those decisions defined the award criteria with reference to frequency Lots (A, B and, optionally, C) without distinguishing national operators per category and, essentially, without defining TI Media as a vertically integrated operator.

(1) OJ 2004 L 24, p. 1.

(2) OJ 2008 C 267, p. 1.