Case C-13/03 P: Appeal brought on 13 January 2003 by the Commission of the European Communities against the judgment delivered on 25 October 2002 by the First Chamber of the Court of First Instance of the European Communities in case T-80/02 between Tetra Laval BV and the Commission of the European Communities
Date: 2003-03-22
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), action for annulment (EU), economic concentration, merger control, packaging product, plastics industry, pulp and paper industry

22.3.2003

EN

Official Journal of the European Union

C 70/5

where Sidel, with 60 % market share for all SBM machines by
capacity, has a leading position. By buying Sidel, Tetra
eliminated the strongest independent competitive constraint
coming from the biggest supplier on the PET side and would
thus strengthen its carton dominance.

( 1) OJ C 68, 16.03.2002, p. 19.
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395,
30.12.1989, p. 1).

( 3) Commission Decision C (2001) 3345 final of 30 October 2001
declaring a concentration to be incompatible with the common
market, Case No COMP/M.2416 Tetra Laval/Sidel.

As the concentration had already been implemented, the
Commission issued a statement of objections, to which Tetra
replied, and held a hearing, with a view to taking a decision
setting out measures in order to restore conditions of effective
competition pursuant to Article 8(4) of the Regulation. On
30 January 2002, the Commission adopted such a decision
(‘the divestiture decision’).

Article 1 of the divestiture decision orders Tetra ‘to separate
itself from Sidel... in accordance with the provisions of the
Annex to this Decision’. Point 1(5) of the Annex requires Tetra
to divest itself of its entire shareholding in Sidel. Point 4(1) of
the Annex specifies a deadline for completion of the divestiture.

Appeal brought on 13 January 2003 by the Commission
of the European Communities against the judgment deliv-
ered on 25 October 2002 by the First Chamber of the
Court of First Instance of the European Communities in
case T-80/02 between Tetra Laval BV and the Commission
of the European Communities

By separate applications, Tetra sought the annulment of both
the prohibition decision (case T-5/02) and the divestiture
decision (case T-80/02). The Court of First Instance gave
judgment in both cases on 25 October 2002.

(Case C-13/03 P)

(2003/C 70/08)

In its judgment in case T-5/02, the Court of First Instance
annulled the prohibition decision.

An appeal against the judgment delivered on 25 October 2002
by the First Chamber of the Court of First Instance of the
European Communities in case T-80/02 (1) between Tetra
Laval BV and the Commission of the European Communities,
was brought before the Court of Justice of the European
Communities on 13 January 2003 by the Commission of the
European Communities, represented by Michel Petite, Anthony
Whelan and Per Hellström, acting as agents, with an address
for service in Luxembourg.

The Appellant claims that the Court should:

— annul the judgment of the Court of First Instance of

25 October 2002 in case T-80/02;

— order Tetra Laval BV to pay the Commission’s costs.

Pleas in law and main arguments

The Commission adopted a decision pursuant to Article 8(3)
of the Merger Regulation (2) on 30 October 2001 prohibiting
the notified concentration between Tetra Laval SA, a wholly
owned subsidiary of Tetra Laval BV (‘Tetra’) and Sidel SA (‘the
prohibition decision’) (3).

In its judgment in case T-80/02 (‘the contested judgment’), the
Court of First Instance observed that the concentration had
indeed been implemented and that the separation of the
undertakings involved in the concentration was the logical
consequence of the prohibition decision. It added that the
adoption of a divestiture decision presupposes that the preced-
ing prohibition decision is valid. Accordingly, the annulment
of the prohibition decision deprives the divestiture decision of
any legal basis. The Court of First Instance concluded that,
since it had annulled the prohibition decision by its judgment
in case T-5/02, the action for the annulment of the divestiture
decision had to be upheld, without examining the other pleas
raised by Tetra.

lead to the annulment of

The Commission has appealed on a number of points of law
against the judgment of the Court of First Instance in case T-
5/02. Should that appeal
the
judgment of the Court of First Instance in that case, the
judgment of the Court of First Instance in case T-80/02 will be
based on a premise vitiated by an error of law, that is, the
invalidity of the prohibition decision. Just as the annulment of
the prohibition decision was the sole ground for the annulment
of the divestiture decision, the invalidity of the judgment
annulling the former would entail the annulment of the
judgment pronouncing the invalidity of the latter.

C 70/6

EN

Official Journal of the European Union

22.3.2003

The Commission submits, therefore, in reliance on the detailed
legal submissions in its appeal
the
contested judgment should be annulled in the event that the
appeal against the Court of First Instance’s judgment in case T-
5/02 is successful.

in case T-5/02,

that

( 1) OJ C 156, 29.06.2002, p. 27.
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395,
30.12.1989, p. 1).

( 3) Commission Decision C (2001) 3345 final of 30 October 2001
declaring a concentration to be incompatible with the common
market, Case No COMP/M.2416 Tetra Laval/Sidel.

Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgemnt of that Court
of 13 November 2002 in the proceedings between 1. Ver-
eniging voor Energie, Milieu en Water, 2. Amsterdam
Power Exchange Spotmarket B.V., and 3. N.V. Eneco and
Directeur van de Dienst uitvoering en toezicht energie;
Joined party: B.V. Netherlands Elektriciteit Administratie-
kantoor

(Case C-17/03)

(2003/C 70/09)

Reference has been made to the Court of Justice of the
European Communities by judgment of the College van Beroep
voor het bedrijfsleven (Administrative Court for Trade and
Industry) of 13 November 2002, received at
the Court
Registry on 16 January 2003, for a preliminary ruling in the
proceedings between 1. Vereniging voor Energie, Milieu en
Water, 2. Amsterdam Power Exchange Spotmarket B.V., and
3. N.V. Eneco and Directeur van de Dienst uitvoering en
toezicht energie; Joined party: B.V. Netherlands Elektriciteit
Administratiekantoor on the following questions:

I.

a) Can Article 86(2) EC be invoked to justify continuing
to grant a company which was formerly entrusted
with the operation of services of general economic
interest and which entered into certain commitments
in connection with such operation a special right to
enable it to honour those commitments after the
particular task assigned to it has been completed?

b)

If this question is answered in the affirmative, is a rule
which provides for the preferential allocation for a
period of ten years of half to a quarter (declining
over time) of the cross-border transport capacity for
electricity to the undertaking concerned nevertheless
invalid because it

II.

a)

Is Article 7(5) of the Electricity Directive (1) to be
interpreted as meaning that the prohibition of dis-
crimination contained therein is restricted to the
requirement that the system operator must not draw
any distinction in granting access to the system by
means of technical rules?

If so, is an allocation method relating to the cross-
border transport capacity of electricity to be regarded
as a technical rule within the meaning of the abov-
ementioned provision?

b)

In the event that the allocation method must be
regarded as a technical rule or in the event that
Article 7(5) of the Electricity Directive is not limited
to technical rules, is a rule under which preferential
cross-border transport capacity is made available for
contracts concluded in connection with a particular
public task compatible with the prohibition of dis-
crimination contained in that article?

(1) Directive 96/92/EC of the European Parliament and of the Council
of 19 December 1996 concerning common rules for the internal
market in electricity (OJ L 27 of 30.01.1997, p. 20).

Appeal brought on 17 January 2003 by Vela Srl and
Tecnagrind SL against the judgment delivered on 7 Nov-
ember 2002 by the Third Chamber of the Court of First
Instance of the European Communities in Joined Cases
T-141/99, T-142/99, T-150/99 and T-151/99 between Vela
Srl and Tecnagrind SL and the Commission of the
European Communities

(Case C-18/03 P)

(2003/C 70/10)

An appeal against the judgment delivered on 7 November
2002 by the Third Chamber of the Court of First Instance of
the European Communities in Joined Cases T-141/99, T-142/
99, T-150/99 and T-151/99 between Vela Srl and Tecnagrind
SL and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 17 January 2003 by the appellants, represented by
Maurizio Carretta, lawyer.

The appellants claim that the Court should:

1.

2.

is not proportionate in relation to the — public
— interest served thereby;

1. As regards the substance,

affects trade to such an extent as would be
contrary to the interests of the Community?

— annul Commission Decision C (1999) 540 of

9 March 1999