Case T-99/02: Action brought on 5 April 2002 by Ineos NV against the Commission of the European Communities
Date: 2002-06-29
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), economic concentration, hydrocarbon, merger control, oil industry, sale

C 156/30

EN

Official Journal of the European Communities

29.6.2002

Grounds of claim:

Violation of Article 8(5) of
40/94 (1).
Council Regulation
According to the applicant, the
trade mark is detrimental to the
repute of the earlier trade mark
and constitutes an unfair advan-
tage for Delta.

According to the applicant, the Commission made manifest
errors of assessment and errors in law in concluding that the
commitments are sufficient to take away the said competitive
concerns and has therefore violated Articles 2 (2) and 8 (2) of
the Merger Regulation (2).

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark (OJ 11, p. 1)

Action brought on 5 April 2002 by Ineos NV against the
Commission of the European Communities

(Case T-99/02)

(2002/C 156/58)

(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 5 April 2002 by Ineos NV,
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).

The applicant claims that the Court should:

— annul, under Article 230 of the EC Treaty, the Com-
mission Decision in case no. COMP/M.2389-Shell/DEA
in its entirety and/or insofar as it concerns the market for
supply of merchant ethylene;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.

The applicant contests the Decision of
the Commission
declaring an operation where Deutsche Shell GmbH would
acquire sole control of the undertaking DEA Mineraloel AG
under certain conditions compatible with the common market
and the EEA Agreement. These conditions were necessary
since the operation gave rise to competition concerns on the
ARG+ merchant ethylene market. In particular, there was a
risk of creating a joint dominant position of Shell/DEA and
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON (1). These cases
were treated similarly by the Commission.

In the contested Decision in the present case, the Commission
imposed on Shell and DEA the obligation to make available,
up to a certain quantity, access to Shell’s terminal facilities to
producers of ethylene. This remedy is based, according to the
applicant, on an error of assessment. The applicant submits
that this obligation is unclear in its definition of the entities
that should be granted access. As a consequence, this remedy
could be made ineffective if access is granted to entities who
should not, according to the applicant, benefit from this access.
The remedy is also limited in time, while the situation after its
expiry will remained the same as it was originally. Furthermore,
the applicant claims that the volume of ethylene that can be
put on the ARG+market in this manner is insufficient to
remedy the constraints on competition caused by the oper-
ation.

The Commission also made an error in law since there is no
protection for third parties on the market until the remedies
in the Shell/DEA case and in the BP/E.ON case become
effective. The remedies imposed in each case are only effective
if the remedies in the other case are operative as well. The
remedies to be given by Shell/DEA will not, however, be
operative until 1 January 2003 or later. Therefore,
the
jointly dominant position will, according to the applicant, be
unconstrained until all the remedies are operative. Meanwhile,
the contested Decision does not provide for any interim
protection for third parties.

The applicant claims in addition that the errors of assessment
and the error in law of the Commission concerning the remedy
in the BP/E.ON case is another ground for annulment of the
Decision contested in the present case since both cases are so
closely related to each other.
the
Commission considered that the commitment to reduce the
combined shareholding of BP and Veba Oel, by two out of
three shares, would achieve open access at reasonable prices
for use of the ARG pipe network.

In the BP/E.ON case,

The applicant argues that the remedy in the BP/E.ON case
gives no control over how the future shareholders will conduct
themselves with regard to the company’s future strategy, and
that there is, therefore, no guarantee that this remedy would
reconstitute the ARG pipe network as a common carrier.
Furthermore, the applicant states that the transfer of a share
needs the unanimous approval of all the other shareholders,
which constitutes an element of uncertainty in the remedy.
The applicant submits also that the Commission has made an
error in law since the remedy gives no provisional solution to
the problems of lack of access and high transportation charges
on the pipe network until the divestment of the shares.

29.6.2002

EN

Official Journal of the European Communities

C 156/31

According to the applicant, the remedy in the Shell/DEA case
remains ineffective as long as this problem is not addressed.
According to the applicant, the commitment from BP/E.ON,
that it will not use its voting rights to block any special
resolutions pending the sale of the shares to be divested, is
insufficient and remains unclear on what is to happen in a
number of situations. The applicant claims therefore that this
commitment does not offer an interim solution at all.

(1) With the operation examined by the Commission in this case, BP,
together with E.ON would acquire joint control of Veba Oel. The
Decision of the Commission in case no. COMP/M.2533-BP/E.ON
is also contested by this applicant in Case T-101/02.

(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395 of
30.12.1989 p. 1; text republished in OJ L 257 of 21.9.1990,
p. 13).

Action brought on 5 April 2002 by EVC International N.V.
against the Commission of the European Communities

(Case T-100/02)

(2002/C 156/59)

(Language of the case: English)

Pleas in law and main arguments

The applicant in the present case is a purchaser of merchant
ethylene outside the ARG+ pipeline network.

The applicant contests the Decision of
the Commission
declaring an operation where Deutsche Shell GmbH would
acquire sole control of the undertaking DEA Mineraloel AG
under certain conditions compatible with the common market
and the EEA Agreement. These conditions were necessary
since the operation gave rise to substantial competition
concerns on the ARG+ merchant ethylene market. In particu-
lar, there was a risk of creating a joint dominant position of
(case no. COMP/M.2533-BP/
Shell/DEA and BP/Veba Oel
E.ON (1).

According to the applicant, the present Decision has an
important effect on the ARG+ merchant ethylene market.
There is a clear price link between this market and markets for
merchant ethylene outside the ARG+, in which the applicant
operates.

The pleas and arguments put forward in the present case are
the same as those put forward in Case T-99/02.

(1) With the operation examined by the Commission in this case, BP,
together with E.ON, would acquire joint control of Veba Oel. The
Decision of the Commission in case no. COMP/M.2533-BP/E.ON
is also contested by this applicant in Case T-102/02.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by EVC International
N.V., represented by Mr Julian Ellison, Mr Mark Clough QC
and Mr Matthew Hall of Ashurst Morris Crisp, Brussels
(Belgium).

Action brought on 5 April 2002 by Ineos NV against the
Commission of the European Communities

(Case T-101/02)

(2002/C 156/60)

The applicant claims that the Court should:

(Language of the case: English)

— annul under Article 230 of the EC Treaty, the Commission
Decision in case no. COMP/M.2389-Shell/DEA in its
entirety and/or insofar as it concerns the market for
supply of merchant ethylene;

— order the Commission to pay the costs

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by Ineos NV,
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).