Case T-58/03: Action brought on 20 February 2003 by Acciaierie e Ferriere Leali Luigi S.p.A. (in liquidation) against the Commission of the European Communities
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Commission, action for failure to act, building industry, fine, restriction on competition

C 101/48

EN

Official Journal of the European Union

26.4.2003

European Communities on 10 February 2003 by Bioelettrica
S.p.A., represented by Ombretta Fabe Dal Negro, lawyer.

The pleas in law and principal arguments are similar to those
in Case T-287/01.

The applicant claims that the Court should:

(1) OJ C 31 of 2.2.2002, p. 15.
(2) Not yet published.

— declare that the European Commission has failed to
perform Contract BM/1007/94 of 12 December 1994
(thermie programme);

— declare the contract terminated by the Commission;

— in any event, order the European Commission to pay to
the applicant compensation — to be decided in separate
proceedings — by way of compensation of the damages
sustained by the applicant as a result of the failure of the
project;

— in the alternative, declare in any event that Bioelettrica
owes no debt to the European Community in respect of
the funding received to date or any interest on the same,
and

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action concerns the same project as that in which
the Commission’s decision to withdraw is challenged in Case
T-287/01 Biolettrica v Commission (1) and T-42/03 Lurgi AG
and Lurgi S.p.A. v Commission (2). The applicant relies upon
the statements made by the Commission in the context of the
termie project, as follows:

— 6.9.2001 the Commission stated that the contract was at

an end;

— 20.11.2001 the contract was regarded as still being in

effect;

— 1.3.2002 the Commission confirmed that the contract

was still in effect;

— 26.11.2002 the Commission stated that the contract was
at an end, having been terminated not on 26.11.2002
but on 6.9.2001.

The applicant submits that the Court of First Instance has not
considered the merits of the Commission’s second revocation
of the contract, that being in issue in Case T-287/01, or the
lawfulness of the revocation of 6 September 2001, which was
based on Article 8(2)(f) of the General Conditions, Annex II to
the contract, whereas the termination of 26 November 2002
is based on Article 8(2)(d) of the General Conditions.

Action brought on 20 February 2003 by Acciaierie e
Ferriere Leali Luigi S.p.A. (in liquidation) against the
Commission of the European Communities

(Case T-58/03)

(2003/C 101/84)

(Language of the case: Italian)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 February 2003 by Acciaierie e
Ferriere Leali Luigi S.p.A.
(in liquidation), represented by
Giovanni Vezzoli, Gianluca Belotti and Elisabetta Stefania
Piromalli, lawyers.

The applicant claims that the Court should:

— annul the contested decision;

— in the alternative, reduce the fine imposed to take account
of the fact that conduct subsequent to its going into
liquidation (25 November 1998/4 December 1998) can-
not be imputed to Acciaierie e Ferriere Leali Luigi
S.p.A. (in liquidation) and to take account of wrongful
application of the increase in respect of duration to the
whole of the basic fine as well as the specific financial
situation of Acciaierie e Ferriere Leali Luigi S.p.A. (in
liquidation), and

— order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the same decision as that
challenged in Case T-27/03 S.P. v Commission. The pleas in
law and principal arguments are similar to those in that case.
Of particular importance are pleas alleging infringement of the
rights of the defence in the procedure conducted by the

26.4.2003

EN

Official Journal of the European Union

C 101/49

Commission and inequality of treatment in that the Com-
mission recognised in the case of another undertaking involved
in the same procedure mitigating factors which it denied the
applicant.

Opodo, alleging infringements of Article 81 and 82 of the EC
Treaty. In the contested Decision, the Commission rejects the
complaint of the applicant.

their application,

the applicants invoke a
In support of
manifest error of assessment and an infringement of the
Commission’s obligation to investigate complaints with due
diligence, with respect to the risk of coordination under
Article 81(1) EC Treaty.

Opodo is a joint selling agency set up by competitors
representing most of the airline sector and provides, according
to the applicants, a significant opportunity for those airlines
to align their prices. The applicants claim that the Commission
made a manifest error of assessment in reaching its conclusion
that the undertakings will ensure that Opodo is not used for
the exchange of commercially sensitive information and that
Opodo will not be used as a vehicle for the shareholders to
coordinate their competitive behaviour. The applicants invoke
furthermore an infringement of the obligation of the Com-
mission to investigate complaints with due diligence, an
infringement of the applicant’s right to receive a response to
its complaint, and a manifest error of assessment with respect
to the distortion of competition in the distribution of airline
tickets under Article 81(1) EC Treaty.

According to the applicants, the Commission failed to address
the specific concern in the complaint that the Opodo infringed
Article 81(1) EC Treaty because it was intended to and would
have the effect of enabling the airlines to secure joint control
of the distribution of airline tickets, forcing independent travel
agencies out of the market.

Finally, the applicants invoke an infringement of the obligation
of the Commission to investigate complaints with due dili-
gence, an error of law and a manifest error of assessment with
respect to discrimination under Article 82(2) EC Treaty.

According to the applicants, the Commission failed to investi-
gate with due diligence the price comparisons provided in the
complaint showing apparent discrimination. The applicants
claim the Commission made an error of law in taking the
position that the denial of lower priced tickets might be
justified by the fact that the applicants focus on business
travellers and made an error of assessment when rejecting the
relevance of the price comparisons.

Action brought on 19 February 2003 by TQ3 Travel
Solutions GmbH and TQ3 Travel Solutions EMEA GmbH
against the Commission of the European Communities

(Case T-59/03)

(2003/C 101/85)

(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 19 February 2003 by TQ3 Travel
Solutions GmbH, Bremen, Germany, and TQ3 Travel Solutions
EMEA GmbH, Bremen, Germany, represented by Dr Thomas
Jestaedt, Mr Christopher Thomas and Dr Thomas Loest,
Lawyers.

The applicant claims that the Court should:

— annul the Commission decision of 9 December 2002
rejecting the applicant’s complaint
in Case COMP/
A.38321/D2-TQ3 Travel Solutions GmbH/Opodo Lim-
ited;

— order the Commission to pay the applicants’ costs.

Pleas in law and main arguments

The applicants are active in the travel agency business,
especially for business passenger air transport services and
connected services.

On 3 November 2000, a joint venture agreement setting up
Opodo Limited, an online travel portal created by nine of the
largest European airlines, was notified to the Commission.
Following the Notice published by the Commission setting out
the undertakings proposed by the notifying parties and the
intention of the Commission to clear the joint venture, one of
the applicants filed a formal complaint against the creation of