Case T-350/03: Action brought on 13 October 2003 by Wirtschaftskammer Kärnten and best connect Ampere Strompool GmbH against the Commission of the European Communities
Date: 2004-01-10
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), economic concentration, electrical energy, free competition, market access

C 7/36

EN

Official Journal of the European Union

10.1.2004

the applicant submitted to the DAFSE an
Subsequently,
application for payment of the balance of PTE 991 009 by the
EFS and of the balance of PTE 810 226 by the Portuguese
State. The DAFSE certified that request, which the Commission
approved by document No 4242 of 13 March 1989, although
it considered the sum of 1 192 162 to be ineligible. On
17 February 1998 the Commission decided, however, to
suspend the contribution.

The applicant claims that the Court should:

— annul the Commission’s decision of 9 July 2003 concern-
ing the restructuring aid which France plans to put into
effect in favour of the Société Nationale Maritime Corse-
Méditerranée;

— order the defendant to pay all the costs.

The Portuguese judicial authorities decided to discontinue the
legal actions pending against the applicant, thereby eliminating
in the applicant’s view the presumption that it had acted
irregularly. Nevertheless, the Commission adopted the decision
at issue in these proceedings.

in the applicant’s view,

The contested decision,
infringes
Regulation (EEC) No 2950/83 and Council Decision 83/516/
EEC since the applicant complied strictly with the conditions
laid down for approval of the EFS contribution, thereby
acquiring ‘subjective rights attaching specifically to it’.

The decision also breaches the principle of the protection of
legitimate expectations in so far as the Commission’s approval
decision vested in the applicant an entitlement to the contri-
butions and gave rise to an expectation on its part that it
would receive them if it carried out the action on the agreed
basis and also because the measure contested herein could
have been put into effect as early as 1989.

Finally, the contested decision constitutes a serious breach of
the principle of proportionality since the applicant incurred
expenses on the assumption that the Commission would fulfil
its commitments.

Action brought on 13 October 2003 by Corsica Ferries
France against the Commission of the European Com-
munities

Pleas in law and main arguments

By the contested decision, the Commission decided that the
restructuring aid which France was planning to put into effect
in favour of the Société Nationale Maritime Corse-Méditerranée
was, under certain conditions, compatible with the common
market. The applicant challenges that decision, asserting that it
has a direct and individual interest in obtaining its annulment,
having regard to its active participation in the formal investi-
gation procedure in respect of the aid and its competitive
position in the reference market.

In support of its action it relies, first, on alleged failure to state
the reasons on which the contested decision is based and,
secondly, on alleged manifest errors of fact and assessment.

Action brought on 13 October 2003 by Wirtschafts-
kammer Kärnten and best connect Ampere Strompool
GmbH against the Commission of the European Com-
munities

(Case T-350/03)

(2004/C 7/67)

(Language of the case: German)

(Case T-349/03)

(2004/C 7/66)

(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 13 October 2003 by Wirtschafts-
kammer Kärnten and best connect Ampere Strompool GmbH,
Klagenfurt (Austria), represented by M. Angerer, lawyer.

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 13 October 2003 by Corsica
Ferries France, established in Bastia (France), represented by
S. Rodrigues and C. Scapel, lawyers, with an address for service
in Luxembourg.

The applicants claim that the Court should:

— annul Commission Decision COMP/M.2947 — Verbund/
EnergieAllianz of 11 June 2003 on the compatibility of a
concentration with the common market and the Agree-
ment on the European Economic Area (EEA Agreement)
and order the defendant to pay the costs.

10.1.2004

EN

Official Journal of the European Union

C 7/37

Pleas in law and main arguments

Electric S.A., established in Rueil-Malmaison (France), rep-
resented by M. Pittie and A. Winckler, lawyers.

The contested decision by the Commission approves the
concentration of several Austrian undertakings with the under-
takings E&S GmbH and Verbund Austrian Power Trading AG,
subject to conditions.

The applicants claim that E&S GmbH and Verbund Austrian
Power Trading AG are not a full-function joint venture for the
purpose of Article 3 of the Merger Regulation (1) in conjunction
with the Notice on the concept of full-function joint ven-
tures (2). In particular, there is a lack of joint control, sufficient
independent resources, independent staff management and the
power to procure a substantial proportion of electrical current
from outside the parent company’s sphere of influence and to
be allowed to sell it freely on the market. Concerted practices
directly related to that merger also invalidate the proposal
under Article 2(4) of the Regulation in conjunction with
Article 81(1) and (2) EC. The Commission should have come
to that conclusion when it examined the proposal.

The applicant claims that the Court should:

— order

the Community
EUR 1 663 734 716,76;

to pay

it

the

sum of

— such sum to be reduced, if appropriate, by an amount
not exceeding EUR 1 663 595,74, depending on the
outcome of the applications for taxation of the costs in
Cases T-310/01, T-77/02 and T-77/02 R;

— such sum to be increased by interest accrued since
4 December 2002 until full payment thereof, at the rate
of 4 % per year;

— such sum to be increased by the amount of tax for which

Schneider will be liable on its receipt;

— order the Commission to pay all the costs.

The applicants also claim that, in addition to that merger, a
likely ‘group effect’ can be expected to result
in further
concerted practices, which would also be invalid under
Article 81(2) EC.

Pleas in law and main arguments

Moreover, the applicants maintain that the planned project
would greatly restrict free competition in the Austrian elec-
tricity market and further seal off the Austrian electricity
market from that of the European Community, since it would
further raise the threshold for access to the Austrian electricity
market. The conditions laid down by the Commission will not
alter that result.

(1) Council Regulation (EEC) No 4064/89 on the control of concen-

trations between undertakings (OJ 1990 L 257, p. 13).

(2) OJ 1998 C 66, p. 1.

Action brought on 10 October 2003 by Schneider Electric
S.A. against the Commission of the European Communi-
ties

(Case T-351/03)

(2004/C 7/68)

(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 October 2003 by Schneider

The applicant company in this case seeks to obtain compen-
sation for the loss which it suffered as a result of
the
Commission’s conduct in dealing with Case COMP/M.2283 —
Schneider Electric/Legrand, which gave rise to the judgments
in Case T-310/01 (1) and Case T-77/02 (2).

It claims in that regard that the Commission, in the course of
the proceeding which led to the prohibition decision of
10 October 2001, made numerous errors most of which were
found established by the Court of First Instance. It also claims
that, during the proceeding after that prohibition decision, the
Commission made errors, not yet established by the Court,
which have increased the damage suffered. In its view, such
conduct by the Commission should be regarded as manifestly
and seriously exceeding the limits of its discretion to assess the
compatibility of a concentration (with the common market).

It is a question, in particular, of a lack of fairness by the
Commission in the proceeding which led to the decision of
10 October 2001, of infringement of the applicant’s defence
rights, of orchestration of the relations between the parties to
the concentration, of infringement of the right to be heard by
an impartial authority, of its intransigence concerning the
detailed rules of the separation imposed on 30 January 2002,
of serious and manifest failure to take into account its exclusive
jurisdiction and of the erroneous analysis of the corrective
measures proposed in November 2002.

(1) Schneider v Commission [2002] ECR II-4071.
(2) Schneider v Commission [2002] ECR II-4201.