Case T-9/02: Action brought on 22 January 2002 by adidas International B.V., Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), DSM Finance B.V., DTG Finance B.V., Heineken N.V., ING Verzekeringen N.V., Koninklĳke Ahold N.V., Landis Group International B.V., Unilever N.V. and Wolters Kluwer N.V. against the Commission of the European Communities
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Commission, Netherlands, State aid, action for annulment (EU), aid to industry, control of State aid

16.3.2002

EN

Official Journal of the European Communities

C 68/19

Action brought on 15 January 2002 by Tetra Laval B.V.
against the Commission of the European Communities

— any ‘leveraging’ deriving from the merger — assuming it
could be established — would in any event not lead to
any market foreclosure of competitors;

(Case T-5/02)

(2002/C 68/33)

(Language of the case: English)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 15 January 2002 by Tetra Laval
represented by Mr Alexandre Vandencasteele and
B.V.,
Mr Denis Waelbroeck, of Liederkerke Siméon Wessing Hou-
thoff, and Mr Andreas Weitbrecht et Mr Sven Völcker of
Wilmer Cutler & Pickering, Brussels (Belgium).

The applicant claims that the Court should:

— grant the applicant the benefit of an expedited procedure;

— declare the present application admissible and well-

founded;

— annul the contested decision in its entirety;

— order the Commission to pay the costs of the procedure.

Pleas in law and main arguments

The applicant in the present case, an undertaking incorporated
under the laws of the Netherlands, challenges the Commission
decision which declared a concentration to be incompatible
with the common market in the Tetra Laval/Sidel case (Case
No COMP/M.2416). This concentration aims to bring together
two companies, one, the applicant, active primarily in carton
packaging, and the other, Sidel, mainly active in PET (polyester)
packaging equipment. According to the applicant, since neither
of the parties is active in the other’s market, the proposed
merger raises no horizontal concerns. Nor does the proposed
merger raise any vertical concerns. It therefore merely raises
potential conglomerate effects.

— the Commission is wrong to be concerned about the
possibility that Tetra Laval, as a result of the merger,
would ‘strengthen its current dominant position in carton
packaging by eliminating a source of significant competi-
tive constraint’, as this ignores the presence of strong
competitors in the PET equipment market and the
acknowledged lack of dominance of Sidel, as well as the
anticipated dynamics of the development of PET;

— the Commission failed to show that the merger could
lead to any strengthening of a dominant position resulting
from the merged entity’s ‘future dominant position in
two closely neighbouring markets’;

— the Commission’s objections failed to consider alternative
packaging materials such as high density polyethylene
(HDPE) bottles, glass and cans; and

— the Commission failed to demonstrate why the remedies
offered by the applicant (the divestiture of its stretch blow
moulding — SBM — machines and PET preform business,
keeping Sidel separate from the Tetra Pak companies for a
period of ten years following the Commission’s clearance
decision, and the granting of a licence of Sidel’s SBM
business for sale to customers filling ‘sensitive’ products
and for sales to converters) did not eliminate the concerns
identified by it.

Action brought on 22 January 2002 by adidas Inter-
national B.V., Coöperatieve Centrale Raiffeisen-Boeren-
leenbank B.A. (Rabobank Nederland), DSM Finance B.V.,
DTG Finance B.V., Heineken N.V., ING Verzekeringen
N.V., Koninklijke Ahold N.V., Landis Group International
B.V., Unilever N.V. and Wolters Kluwer N.V. against the
Commission of the European Communities

(Case T-9/02)

(2002/C 68/34)

In support of its arguments, the applicant submits that:

(Language of the case: Dutch)

— the Commission failed to give full access to the file;

— it is not established that Tetra Laval will, as a result of the
merger, be able to ‘leverage’ its position from the carton
market into the PET equipment market;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 January 2002 by adidas Inter-

C 68/20

EN

Official Journal of the European Communities

16.3.2002

national B.V., established in Amsterdam, Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), estab-
lished in Amsterdam, DSM Finance B.V., established in Heerlen
(Netherlands), DTG Finance B.V., established in The Hague,
Heineken N.V., established in Amsterdam, ING Verzekeringen
N.V., established in The Hague, Koninklijke Ahold N.V.,
established in Zaandam (Netherlands), Landis Group Inter-
national B.V., established in Utrecht (Netherlands), Unilever
N.V., established in Rotterdam (Netherlands), and Wolters
Kluwer N.V., established in Amsterdam, all represented by
E.H. Pijnacker Hordijk and S.B. Noë, lawyers.

The applicants claim that the Court should:

— annul the Commission’s decision of 11 July 2001 to
initiate the procedure laid down in Article 88(2) EC in
respect of aid measure C 51/2001 (ex NN 48/2000) —
International financing activities;

— order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision, the Commission initiated an investi-
gation procedure concerning new State aid in respect of the
Netherlands fiscal legislation relating to international group
financing activities (‘the CFA regime’). In their application in
the present proceedings, the applicants deny that any new
State aid is involved.

The applicants plead infringement of Article 88 of the EC
Treaty and of Regulation No 659/1999,
inasmuch as the
Commission should have initiated the procedure in relation to
existing aid rather than that in respect of new aid. According
to the applicants, it was not until after the CFA regime was
introduced in 1997 that the Commission proceeded to regard
such measures as constituting aid. As evidence of this, the
applicants refer to the Commission’s observations of 1984 and
1987 in relation to notification of a similar system by the
Belgian Government, and also to the fact that the Belgian
system is currently being investigated in accordance with the
procedure for existing aid.

The applicants further claim that
the contested decision
violates the principle of equality, the general duty of care and
the principle of the protection of legitimate expectations.
Moreover, no sufficient statement of reasons has been given
for the classification of the measure as new State aid.

Action brought on 18 January 2002 by Marie-Claude
Girardot against Commission of the European Com-
munities

(Case T-10/02)

(2002/C 68/35)

(Language of the case: French)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 January 2002 by Marie-Claude
Girardot, residing in Brussels, represented by Nicolas Lhoëst,
avocat, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the decision of the Commission of 13 March
2001 rejecting the applicant’s candidature in respect of
COM/R/502310/2001, COM/R/502253/2001, COM/R/
508026/2001, COM/R/502529/2001, COM/R/506004/
2001, COM/R/502059/2001 and COM/R/502105/2001,
published in the Spécial Recherche vacancy notice of
12 February 2001;

— annul the decision of the Commission of 15 March
2001 rejecting the applicant’s candidature in respect of
COM/2001/CCR16/R, published in the Spécial CCR
vacancy notice of 9 February 2001;

— annul the appointments made to the abovementioned

posts;

— order the defendant to pay all the costs.

Pleas in law and main arguments

it

infringes the terms of

According to the applicant, the Commission added a new
condition for the admission of candidates to posts, refusing
her candidature on the ground that the post is only available
to staff covered by the Staff Regulations. Since that condition
does not appear in the vacancy notices, the applicant submits
those notices and alleges
that
infringement of Articles 4 and 29 of the Staff Regulations
inasmuch as the Commission has not organised a competition
for those posts. The applicant also alleges manifest error of
the Staff
assessment and infringement of Article 27 of
Regulations in that the Commission did not take account of
the applicant’s qualifications. Finally, the applicant claims that
a statement of reasons has not been provided for the contested
decisions.