Case T-48/03: Action brought on 10 February 2003 by Schneider Electric S.A. against Commission of the European Communities
Date: 2003-04-26
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, economic concentration, electrical equipment, electricity supply, merger control

C 101/42

EN

Official Journal of the European Union

26.4.2003

The applicant also invokes the violation of several general
principles of Community Law, such as the principles enshrined
in Articles 6, 7, 10 and 11 of the European Convention on
Human Rights and Article 1 of the First Protocol thereto.

The applicant finally invokes the illegality of Regulation 2580/
2001. According to the applicant,
the Council had no
competence to adopt this regulation. The applicant claims that
Articles 60, 301 and 308 of the EC Treaty are not sufficient
nor do they explicitly authorise the Council to issue such a
regulation. In this respect, the applicant also invokes a violation
of
the principle of proportionality, the principle of legal
certainty and a misuse of power by the Council.

( 1) 2002/848/EC: Council Decision

2002
implementing Article 2(3) of Regulation (EC) No 2580/2001 on
specific restrictive measures directed against certain persons and
entities with a view to combating terrorism and repealing Decision
2002/460/EC (OJ L 295, p. 12).

28 October

of

( 2) Council Regulation (EC) No 2580/2001 of 27 December 2001
on specific restrictive measures directed against certain persons
and entities with a view to combating terrorism (OJ L 344, p. 7).
( 3) 2002/974/EC: Council Decision of 12 December 2002
implementing Article 2(3) of Regulation (EC) No 2580/2001 on
specific restrictive measures directed against certain persons and
entities with a view to combating terrorism and repealing Decision
2002/848/EC (OJ L 337, p. 85).

Action brought on 10 February 2003 by Schneider
Electric S.A. against Commission of the European Com-
munities

(Case T-48/03)

(2003/C 101/76)

(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 10 February 2003 by Schneider
Electric S.A., whose registered office is at Rueil-Malmaison
(France), represented by Antoine Winckler and Marc Pittie,
lawyers.

The applicant claims that the Court should:

— annul all the provisions of the Commission decision of
4 December 2002 based on Article 6(1)(c) of Council

Regulation (EEC) No 4064/89 (Case COMP/M.2283
Schneider/Legrand);

— annul all the provisions of the Commission decision of
13 December 2002 whereby the Commission closed Case
COMP/M.2283 Schneider/Legrand;

— order production of the market studies carried out in

November 2002 in the context of Case COMP/M.2283;

— order the Commission to produce, on the assumption
that they exist, the minutes of
the
Commission at which the decision to close the case was
adopted and the decision delegating a power of signature
to the Director-General for Competition and authorising
him to sign the decision closing the case;

the meeting of

— order the Commission to reimburse the costs incurred in

connection with the present actions.

Pleas in law and main arguments

On 10 October 2001, the Commission adopted a decision
declaring Schneider’s public exchange offer in respect of all the
shares in Legrand held by the public to be incompatible with
the common market (1). As Schneider had closed its public
offer before that decision was taken, the Commission adopted
a further decision of 30 January 2002 ordering Schneider to
divest itself of Legrand. The applicant challenged both these
decisions in Cases T-301/01 and T-77/02. The Court of First
Instance annulled the decisions by judgment of 22 October
2002.

On 4 December 2002, the Commission adopted a decision to
initiate proceedings, after declaring that the concentration
raised serious doubts as to its compatibility with the common
market and opened the second phase investigation. The
applicant subsequently informed the Commission that as it
had divested itself of Legrand, on 10 December, the proceed-
ings had become devoid of purpose. On 13 December 2002,
the Commission closed the file (2).

In the present case, the applicant challenges the Commission
decisions of 4 and 13 December 2002. The applicant states
that the true effect of the decisions is to prohibit irremediably
the union between Schneider and Legrand. In light of the
obligation to implement the divestiture decision in good faith
and the fact that it was impossible to secure provision by
financial investors of the amounts necessary for an additional
period in excess of four months, the deadline for disposing of

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Official Journal of the European Union

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Legrand was set at 5 December 2002. According to the
applicant, these economic consequences and the obligation to
comply in good faith with the judgments of the Court of First
Instance meant that the Commission was required to pay
particular attention when resuming the investigation of the
case.

In support of its action, the applicant claims, first, that the
Commission did give effect to the judgment of the Court of
First Instance in Case T-310/01. The applicant states that the
Commission resumed the proceedings at ‘stage I’, whereas the
Court of First Instance had held that its examination should be
recommenced at the stage at which the Commission had
committed its procedural error, i.e. at the time of communicat-
ing the statement of objections.

Second, the applicant claims that there has been a breach of
its rights of defence. It maintains that the Commission did not
communicate the objections which it intended to use against
it within the prescribed period and with the clarity which
would give it the proper opportunity to submit corrective
measures. The applicant further states that the Commission
refused to grant any access to the results of the market studies
which it carried out for the purpose of evaluating the scope of
the corrective measures proposed by the applicant.

Third, the applicant claims that there has been an infringement
of the principle of good administration, in that the Commission
distorted the corrective measures in the questionnaire drawn
up for the purpose of the market studies and did not take into
account certain factual matters which qualified the results.

Fourth, the applicant relies on a number of errors of law and
of manifest errors of assessment. The applicant claims that the
Commission ignored the consequences of its decisions by
stating that serious doubts still existed concerning the compati-
bility of the operation with the common market. According to
the applicant, the Commission therefore failed, contrary to the
second paragraph of Regulation No 4064/89 (3) and to the
judgment of the Court of First Instance, to adopt a definitive
position. Furthermore, the Commission is also alleged to have
applied a stricter standard of proof to the facts in issue than
that laid down in Article 2(2) of Regulation No 4064/89.

The applicant further claims that the Commission at no time
approached the level of proof required to demonstrate the
effects of a conglomerate of this type.

rejected those measures by making its assessment subordinate
to that of a national court and by waiving its exclusive power
to control concentrations of a Community dimension.

In addition,

The applicant also claims that the Commission made a
manifest error of assessment in considering that the corrective
measures proposed were insufficient in the light of
the
allegedly inadequate industrial viability of the undertakings
disposed of.
it claims that the Commission
infringed the principle of proportionality by refusing to take
into account the potential acquirers of the shares disposed
of and an alternative proposal to dispose of a significant
shareholding. Last, the applicant claims that the Commission
infringed Regulation No 4064/89 by refusing to analyse the
applicant’s undertakings as to conduct.

Last, the applicant claims that the decision to close the
proceedings is vitiated by an error of law, since it has no legal
basis in Regulation No 4064/89 or in any other principle of
law. In that regard, the applicant also relies on an infringement
of the principle of collegiality of the Commission.

(1) Case COMP/M.2283 — Schneider/Legrand.
(2) Initiation of proceedings and abandonment of

the planned
concentration (Case COMP/M.2283 — Schneider/Legrand II) (Text
with EEA relevance) (OJ 2003 C 29, p. 5).

(3) Council Regulation (EEC) No 4064/89/EEC of 21 December 1989
on the control of concentrations between undertakings (OJ 1989
L 395, p. 1).

Action brought on 6 February 2003 by Gunda Schumann
against the Commission of the European Communities

(Case T-49/03)

(2003/C 101/77)

(Language of the case: German)

Last, the applicant states that the Commission made errors of
law and errors of assessment when analysing the corrective
measures proposed by the applicant. Thus, the Commission

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 February 2003 by Gunda
Schumann, resident in Berlin, represented by I. Bock, lawyer,
with an address for service in Luxembourg.