Case T-155/04: Action brought on 23 April 2004 by ALENIA MARCONI SYSTEMS SpA against Commission of the European Communities
Date: 2004-07-10
Institutions: Court of First Instance
Subjects: Eurocontrol, European Commission, action for annulment (EU), administrative cooperation, complaint to the Commission, dominant position, intellectual property, restriction on competition

10.7.2004

EN

Official Journal of the European Union

C 179/11

The second plea alleges obvious error by the Commission in
assessing the quality of
the tenders, giving the tender by
Carlson Wagonlit Travel the highest mark for the quality of the
services offered, whereas that tender was unable to allow suffi-
cient quality for the services concerned to be guaranteed.

antee. The applicant claims that it should not be treated as a
party in default in the light of its decision to appeal against the
decision imposing the fine and the nature and content of the
negotiations undertaken in good faith.

(1) Contract No ADMIN/D1/PR/2003/131 (OJ S 143).
(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23
December 2002 laying down detailed rules for the implementation
of Council Regulation (EC, Euratom) No 1605/2002 on the Finan-
cial Regulation applicable to the general budget of the European
Communities (OJ 2002 L 357, p. 1).

Action brought on 26 April 2004 by GRAFTECH INTER-
NATIONAL LTD. against the Commission of the European
Communities

(Case T-152/04)

(2004/C 179/22)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 26 April 2004 by GRAFTECH
INTERNATIONAL LTD., Wilmington, Delaware, USA, repre-
sented by K.P.E. Lasok QC and Brian Hartnett Barristers with
an address for service in Luxembourg.

The applicant claims that the Court should:

— annul the contested decision;

— alternatively, amend the contested decision, in exercise of
the Court's unlimited jurisdiction, so as to cause interest at
8.04 % to run only as from 30 September 2003, or as to
reduce the rate of interest;

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments:

The applicant furthermore claims that the Commission acted
contrary to Article 86(5) of Regulation 2342/2002 (2).

The applicant also claims that the conduct of the Commission
allowed the applicant to legitimately expect that an interest rate
of 6.04 % would be imposed.

The applicant invokes a violation of the principle of good
administration because the Commission failed to agree on an
appropriate form of a financial guarantee. Also, the applicant
claims that the Commission failed to give clear notice that the
higher interest rate would be levied during the period of nego-
tiation.

the applicant claims that

Finally,
the contested decision is
disproportionate. According to the applicant, the justification
for the default rate of interest is to deter dilatory behaviour and
not to penalise bona fide negotiations that the Commission has
willingly embarked upon and continued at its own pace.

(1) 2002/271/EC: Commission Decision of 18 July 2001 relating to a
proceeding under Article 81 of the EC Treaty and Article 53 of the
EEA Agreement - Case COMP/E-1/36.490 - Graphite electrodes (OJ
2002 L 100, p. 1).

(2) Commission Regulation (EC, Euratom) No 2342/2002 of 23
December 2002 laying down detailed rules for the implementation
of Council Regulation (EC, Euratom) No 1605/2002 on the Finan-
cial Regulation applicable to the general budget of the European
Communities (OJ L 357, p. 1).

Action brought on 23 April 2004 by ALENIA MARCONI
the European
SYSTEMS SpA against Commission of

Communities

(Case T-155/04)

(2004/C 179/23)

(Language of the case: Italian)

The subject matter of this action is a decision of the Commis-
sion, contained in a letter of 17 February 2004, by which the
Commission required the applicant to pay interest on a fine
imposed by a Commission Decision of 18 July 2001 (1) at the
rate of 8.04 % instead of 6.04 %.

An action was brought before the Court of First Instance of the
European Communities on 23 April 2004 against Commission
of
European Communities by ALENIA MARCONI
SYSTEMS SpA, represented by Francesco Sciaudone, Lawyer.

the

In support of its application, the applicant claims that the
Commission has acted unlawfully in seeking to impose the
higher of the two possible interest rates. According to the
applicant, the delay in the payment of the fine or the provision
of a satisfactory financial guarantee for the fine was due to the
recognition by the Commission that the applicant could not
pay the fine and the efforts by both parties to reach an agree-
ment on what would constitute a satisfactory financial guar-

The applicant claims that the Court of First Instance should:

— Order the Commission to produce to the Court of First
the records available to it concerning the

Instance all
complaint lodged by the applicant;

— Annul and/or amend the contested decision;

C 179/12

EN

Official Journal of the European Union

10.7.2004

— Adopt any other measure which the Court of First Instance
may consider appropriate to ensure that the Commission
fulfils its obligations under Article 223 EC and, in particu-
lar, re-examines the complaint lodged on 27 October 1997;

— Order the Commission to pay the costs.

Pleas and principal arguments adduced in support

in connection with the

The contested decision rejected the complaint lodged on 27
October 1997 under Article 3 of Regulation No 17/62 by the
the business arm of
company then named Alenia Difesa,
FINMECCANICA SpA,
supposed
absence of the preconditions for the applicability to Eurocon-
trol of the Community competition provisions and the absence
of sufficient evidence to prove the alleged abuses to which the
complaint related. In particular, the applicant had complained
of abuses of a dominant position engaged in by Eurocontrol
and the distorting effects on competition of the management
methods used in respect of the contracts, for the development
of prototypes and of intellectual property rights, with reference
to the contracts for the supply of air-traffic management equip-
ment, and in the provision of assistance to national administra-
tions.

In the first place, the decision is challenged on the ground of
infringement of Article 82 of the EC Treaty, particularly to the
extent to which, although recognising in principle the applic-
ability of Article 82 to Eurocontrol, with respect to the present
case it held it not to be relevant,
in so far as it denies the
economic nature of the activities of standardisation and assis-
tance to national administrations carried out by that body.

In addition to the infringement mentioned above, the decision
is allegedly vitiated by the fact that the Commission:

(a) failed to examine from the substantive point of view the
abusive nature of the conduct complained of in relation to
the activity of standardisation, regulation and validation, or
the activity of providing assistance to national administra-
tions;

(b) decided, when considering from the substantive point of
view, albeit briefly, the conduct of Eurocontrol relating to
the purchasing of prototypes and the management of
related intellectual property rights, that there was no abuse
within the meaning of Article 82 of the EC Treaty.

Finally, the contested decision is, it is alleged, vitiated by the
lack of any adequate statement of reasons such as to
total
prove the non-economic nature of certain activities of Eurocon-
trol and the lack of any abuse on the part of Eurocontrol
within the meaning of Article 82 of the EC Treaty.

Action brought on 27 April 2004 by Electricité de France
(EDF) against Commission of the European Communities

(Case T-156/04)

(2004/C 179/24)

(Language of the case: French)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 27 April 2004 by Electricité de
France (EDF), established in Paris,
represented by Michel
Debroux, lawyer, with an address for service in Luxembourg.

The applicant claims that the Court should:

— annul Articles 3 and 4 of Commission Decision
C(2003)4637 Final of 16 December 2003 on State aid
granted by France to the applicant and to the gas and elec-
tricity industry sectors in the form of accounting and fiscal
measures adopted in 1997 when EDF's balance sheet was
restructured;

— alternatively, annul Articles 3 and 4 of the contested deci-
sion inasmuch as the repayment required of EDF was very
considerably overestimated;

— order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision, the Commission took the view that
the non-payment by the applicant of corporation tax when tax-
free provisions created by it for the renewal of its general
supply network were reclassified as the provision of capital
constituted State aid incompatible with the common market.

In support of its application, the applicant relies first on a plea
in law based on the alleged infringement of essential procedural
requirements. It argues that in altering its assessment between
the decision to initiate the procedure and the adoption of the
contested decision without allowing the applicant to submit its
observations,
the Commission failed to have regard to the
rights of the defence.

The applicant next alleges that the measures at issue must be
analysed as a lawful recapitalisation on the applicant's part. In
failing to respond to that argument, the Commission failed in
its duty to state reasons and committed an error of law in its
assessment of the concept of State aid. The applicant also
alleges under the same plea that the measures at issue did not
affect trade between Member States and accordingly could not
be considered to be State aid.

Lastly, in support of the form of order sought in the alternative,
the applicant alleges that the contested decision required repay-
ment of a greater sum than that which could possibly be
considered to be due.