EN Official Journal of the European Union C 285/47

Action brought on 21 August 2008 — Spira v Commission

(Case T-354/08)

(2008/C 285/86)

Language of the case: English

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerp, Belgium) (represented by: J. Bourgeois, Y. Van Gerven, F. Louis, A. Vallery, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— Annul the Commission decision of 5 June 2008, pursuant to Article 7(2) of Council Regulation No 773/2004, in case COMP/38.826/B-2-Spira/De Beers/DTC Supplier of Choice;

— Order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In the present case, the applicant contests Commission Decision (2008) D/203546 of 5 June 2008 by which the Commission declared that the change in facts due to the annulment by the Court of First Instance of the commitment decision (1) was not a decisive element which would require the Commission to revisit its Decision (2007) D/200338 of 26 January 2007, by which it rejected, for lack of Community interest, the applicant's complaint regarding violation of Articles 81 and 82 EC in connection with the Supplier of Choice (SoC) system applied by De Beers Group for the distribution of rough diamonds (‘rejection decision’ (2)) (Case COMP/38.826/B-2-Spira/De Beers/DTC Supplier of Choice).

The applicant puts forward three pleas in law in support of its claims.

Firstly, the applicant alleges that the Commission failed to examine with care and impartiality the anticompetitive practices denounced by the applicant in its complaint.

Secondly, the applicant claims that when re-examining the issue of input foreclosure the Commission could not claim that there was a lack of Community interest to act on the complaint in light of the significant damage resulting from the input foreclosure caused by the SoC system. The applicant submits that the input foreclosure should have been considered of Community interest as it affects the availability of rough diamonds EU-wide and even worldwide. It considers that the SoC distribution system is an anti-competitive selective distribution system that restricts intra-brand competition.

Thirdly, in the alternative, the applicant submits that the Commission erred in law and provided inadequate statement of reasons in the application of the foreclosure effects test by:

— not having first defined the analyzed market structure, market power of the company concerned and the market position of its competitors;

— failing to engage the examination of all potential restrictions or monopolization activities of the supplier whose selective distribution system was under scrutiny.

Furthermore, the applicant claims that the Commission made a manifest error of assessment and based its decision on materially incorrect facts when concluding that the SoC arrangement does not appreciably foreclose secondary market operators from access to rough diamonds (the input foreclosure).

(1) Case T-170/06 Alrosa v Commission [2007] ECR II-2601, appeal lodged by the Commission with the Court of Justice, Case C-441/07, Commission v Alrosa, OJ 2007 C 283, p. 22.

(2) The rejection decision is appealed by the applicant before the Court of First Instance in Case T-108/07 Spira v Commission, OJ 2007 C 129, p. 20.