Case T-340/03: Action brought on 2 October 2003 by Wanadoo Interactive S.A. against the Commission of the European Communities
Date: 2003-11-29
Institutions: Court of First Instance
Subjects: European Commission, Internet, action for annulment (EU), fixing of prices, reduced price

C 289/34

EN

Official Journal of the European Union

29.11.2003

In the event that the Court does not make the declaration
primarily sought against the contested regulation, the appli-
cants seek in the alternative a declaration from the Court that
Article 2 of Regulation No 1260/2001 is unlawful and
inapplicable in so far as it enables the Commission when
setting the derived intervention price on the basis of market
trends to disregard the effect of unrestricted imports free of
duty.

Second, the applicants assert that the statement of reasons for
the contested regulation appears inadequate and contradictory
given that, by that measure, the Commission has altered its
own practice of preceding years — inasmuch as Italy was not
included in the States covered by regionalisation — without
any objective justification for that change and without taking
account of the specific situation arising from the abovemen-
tioned imports free of duty of white sugar from the Balkans.

Third, and in the alternative, the applicants submit that even
without taking account of the imports free of duty of white
sugar from the Balkans in assessing domestic supply, the
Commission should not deemed Italy to be a ‘deficit area’.

(1) OJ L 162 of 1.7.2003, p. 24.
(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
common organisation of the markets in the sugar sector (OJ
L 178 of 30.6.2001, p. 1).

Action brought on 6 October 2003 by Gabrielle Clotuche
against the Commission of the European Communities

(Case T-339/03)

(2003/C 289/69)

(Language of the case: French)

— annul the decision of the Commission of 1 October 2003
fixing the new organigram of DG ESTAT in so far as it
does not thereby constitute a reassignment of the appli-
cant where another individual reassignment measure is
ordered in addition;

— order the Commission to pay her EUR 25 000 by way of
compensation for the non-material damage suffered as a
result of irregular conduct;

— order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

The applicant, a Commission official, was transferred on
16 January 2003 to Eurostat as Director of the Social Statistics
Directorate. On 9 July 2003, in view of the serious irregularities
the Commission
which allegedly took place in Eurostat,
decided to move all Eurostat’s directors, including the appli-
cant, to posts as Principal Advisers. On 1 October 2003, the
Commission decided on a new structure for the reformed DG
ESTAT departments and decided that, in principle, it would
open applications for the posts in the new directorates to both
external and internal applicants, without taking account of the
applicant. The applicant contests both those decisions claiming
that the alleged irregularities within Eurostat took place until
2001 at the latest, while she was not posted there until 2003
and was thus not
In support of her
involved in them.
application, she alleges infringement of Articles 4, 7, 24, 25
and 47 of the Staff Regulations, breach of the principle of
equal treatment and of prohibition of discrimination, the
principle of sound administration, the principles ‘audi alteram
partem’ and ‘patere legem’, manifest error of assessment, abuse
of process and misuse of powers.

Action brought on 2 October 2003 by Wanadoo Inter-
active S.A. against the Commission of the European
Communities

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 October 2003 by Gabrielle
Clotuche, residing in Brussels, represented by Pierre-Paul Van
Gehuchten, Gilbert Demez Jacques Sambon, lawyers.

(Case T-340/03)

(2003/C 289/70)

(Language of the case: French)

The applicant claims that the Court should:

— annul the decision of the Commission of 9 July 2003 to
reassign the applicant by transfer in the interest of the
service from her post as Director of the Social Statistics
Directorate at Eurostat to a post as Principal Adviser at
Eurostat;

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 2 October 2003 by Wanadoo
Interactive S.A., whose registered office is in Issy-les-Mou-
lineaux (France), represented by O.W. Brouwer, H. Calvet,
M. Pittie and J. Philippe, lawyers.

29.11.2003

EN

Official Journal of the European Union

C 289/35

The applicant claims that the Court should:

— annul

the Commission’s decision of 16 July 2003,
imposing a fine of 10,35 million euros on the applicant;

— in the alternative, withdraw the fine or reduce its amount;

— order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a French limited liability company 99 %-owned
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging
predatory prices for its Pack eXtense and Wanadoo ADSL
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market
for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.

— applied an erroneous test on the coverage of costs
in place of the only relevant test, which showed that
the full costs connected with the services concerned
were covered for the whole of the period referred to
in the decision;

— refused the applicant the right to align its prices on

those charged by its competitors;

— committed a serious error of law, exacerbated by
obvious errors of assessment, in implementing the
test for predatory pricing that it used, particularly
by failing to take account of the highly competitive
market context;

— concluded that a predatory pricing plan existed

without adducing the necessary evidence.

In the alternative, the applicant claims that the fine should be
annulled, or very substantially reduced.

In support of its claims, the applicant argues:

— Infringement of essential procedural requirements, and in

particular of its defence rights, in that the Commission:

Action brought on 3 October 2003 by El Corte Inglés S.A.
against the Office for Harmonisation in the Internal
Market (OHIM)

— infringed the principle that violations are to be
attributed to the offender only, in that it held against
the applicant matters which it imputes to the ‘France
Telecom Group’ and on which neither the applicant
nor France Telecom were in a position to submit
observations. In that respect, the applicant insists
that France Telecom and the applicant itself are two
distinct legal persons;

(Case T-341/03)

(2003/C 289/71)

(Language of the case: Spanish)

— failed to communicate its final test on the coverage
in its
of costs in a statement of objections, and,
decision, determined a duration of the infringement
longer than that mentioned in the statement of
objections;

An action against the Office for Harmonisation in the Internal
Market (OHIM) was brought before the Court of First Instance
of the European Communities on 3 October 2003 by El Corte
Inglés S.A, having its registered office in Madrid, represented
by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.

— gave no reason for abandoning the principle of
alignment of prices laid down by the Community
case-law.

The applicant claims that the Court should:

— Infringement of Article 82 of the EC Treaty, in that the

Commission:

— gave an incorrect definition of the market, on which
the applicant had in any case never held a dominant
position;

— set aside the decision of the First Board of Appeal of

OHMI of 9 July 2003 in Case R 0565/2002-1;

— refuse to register as a Comunity mark No 488.999

DAVID LLOYD in Class 25, and

— order the other party or parties to pay the costs.