Case T-145/03: Action brought on 23 April 2003 by Festival Crociere SpA against the Commission of the European Communities
Date: 2003-06-21
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, economic concentration, merger control

21.6.2003

EN

Official Journal of the European Union

C 146/45

Action brought on 23 April 2003 by Festival Crociere SpA
against the Commission of the European Communities

(Case T-145/03)

(2003/C 146/80)

(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 23 April 2003 by Festival Crociere
SpA, represented by Professor G.M. Roberti, G. Bellitti and
I. Perego, lawyers.

The applicant claims that the Court should:

— annul the contested decision;

— order the Commission to pay the costs.

Pleas in law and main arguments

By this action the applicant company challenges the Com-
mission’s Decision of 10 February 2003 authorising, pursuant
to Article 6(1)(b) of Regulation (EEC) No 4064/89, a concen-
tration between Carnival Cruises and P&O Princess II.

In support of its claims the applicant submits:

— first, that the Commission has not correctly appraised the
new corporate structure arising from the merger or its
economic and financial implications. The Commission
should have found that the structure of the dual-listed
company was, of itself, capable of conferring very signifi-
cant competitive advantages on Carnival,
including
advantages in terms of financial strength, likely to give it
overwhelming power on the market such that other
operators would no longer be able to compete. From this
point of view the decision appears to be vitiated by a
manifest error of assessment, as well as an inadequate
statement of reasons in that the Commission failed to
consider an essential fact which must be taken into
account in order properly to evaluate the competition
aspects of the concentration. Had that fact been properly
examined, it would necessarily have led the Commission
to prohibit the concentration or, at least, to initiate an
in-depth enquiry under Article 6(1)(c) of Regulation
No 4064/89;

— second, that the Commission has not correctly assessed
certain specific economic factors mentioned in Para-
the decision, concerning in particular:
graph 11 of
continued competition from other operators, prospects
of growth in the market, barriers to entry and the real
prospects of competing with Carnival/P&O’s dominance
in the market. The Commission not only failed to base its
conclusions on a coherent objective justification, but also
failed to appraise, as is essential in this case, the effects of
the new financial structure of the dual-listed company
with reference to the main competitive factors. Had the
Commission properly analysed these, it would not have
confined itself to referring, without further reflection, to
the first decision, but would have reconsidered the
assessments made at the time of the first decision, or at
least commenced an in-depth enquiry.

Action brought on 6 May 2003 by Nuova Agricast S.r.l.
against the Commission of the European Communities

(Case T-151/03)

(2003/C 146/81)

(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 6 May 2003 by Nuova Agricast
S.r.l., represented by Michele Arcangelo Calabrese, avvocato.

The applicant claims that the Court should:

— Annul the contested measures;

— Order the European Commission to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those
invoked in Case T-139/03 Nuova Agricast S.r.l. v Commission
of the European Communities (1).