Case T-5/02: Action brought on 15 January 2002 by Tetra Laval B.V. against the Commission of the European Communities
Date: 2002-03-16
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, dominant position, economic concentration, preparation for market

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-