Case T-279/04: Action brought on 8 July 2004 by Éditions Odile Jacob SAS against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), communications industry, economic concentration, exchange of information, merger control, people's bank, publishing

23.10.2004

EN

Official Journal of the European Union

C 262/33

Pleas in law and main arguments

The applicant claims that the Court should:

By Decision 93/82/EEC of 23 December 1992, the Commission
imposed on, inter alia, the applicant a fine in the context of a
proceeding pursuant to Articles 85 and 86 (now Articles 81
and 82) of the EC Treaty. The applicant brought an action
against that decision and the Court of Justice, by judgment of
16 March 2000 (1), annulled the decision in so far as it
imposed a fine on the applicant. Following that judgment, the
Commission adopted the contested decision, which imposed a
fine of EUR 3 400 000 on the applicant for the same infringe-
ments.

In support of its application for annulment of the latter deci-
sion, the applicant submits, first, that the Commission adopted
its second decision at a time when the period within which it
could reasonably do so had elapsed and that it is therefore
estopped from taking action. The applicant also claims that the
Commission breached its rights of defence by re-opening the
procedure solely in relation to the question of
the fine.
According to the applicant, where the Commission imposes a
fine, it must re-assess the infringements as at the date of its
new decision and cannot, as in the present case, have regard to
assessments of the facts made 12 years ago. The applicant also
claims that the fine is unjustified, as the infringements have not
been established. Lastly, the applicant argues that the fine is
discriminatory and disproportionate, that it was imposed in
breach of the Commission's customary practice and that it
amounts to an abuse of power. The applicant maintains that it
received virtually the entire fine imposed for alleged abuses of a
dominant position by a conference in which it held less than
one third of the rights.

(1) Joined Cases C-395/96 P and C-396/96 P.

Action brought on 8 July 2004 by Éditions Odile Jacob
European
SAS

against

the

of

the Commission
Communities

(Case T-279/04)

(2004/C 262/64)

(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 8 July 2004 by Éditions Odile Jacob
SAS, established in Paris, represented by Olivier Fréget and
Wilko van Weert, lawyers.

— annul

the Commission Decision of 7 January 2004
declaring a concentration compatible with the common
market and the functioning of the EEA agreement (Case No
COMP7M:2978-LAGARDERE/NATEXIS/VUP) (1);

— order the Commission to pay the costs.

Pleas in law and main arguments

By the contested decision,
the Commission decided not to
oppose the acquisition by Lagardère of control of certain assets
of Vivendi Universal Publishing, controlled by Investima, itself
controlled by Natexis Banques Populaires, notified to the
Commission under Article 4 of Regulation (EEC) No
4064/89 (2) on 14 April 2003, and to declare it compatible
with the common market and with the EEA agreement,
provided the commitments offered were met.

The applicant, who claims to be directly and individually
concerned by the contested decision, having actively partici-
pated in the administrative procedure preceding its adoption,
seeks the annulment of the decision in question, arguing, first,
that the Commission has infringed Regulation No 4064/89.
The applicant submits that
the bank, Natexis, cannot be
covered by the exception laid down in Article 3(5)(a) of that
regulation, since it acquired Vivendi Universal Publishing only
that undertaking to
after giving a commitment
Lagardère. Furthermore, the Commission wrongly classified the
project in question as the acquisition of total control, when in
actual fact it constituted the acquisition of joint control by
Lagardère and Natexis, which should have notified it to the
Commission jointly under Article 4(2) of Regulation 4064/89.

to resell

The applicant maintains also that the Commission infringed
Article 6(1) and Article 2(1)(a) of Regulation No 4064/89 by
accepting notification of the operation in question more than
four months after it took place and by granting Lagardère
successive extensions of time which had the effect of post-
poning the adoption of the decision by nine months. The
Commission also committed a manifest error in its assessment
of Lagardère's real power.

The applicant further claims that the Commission infringed
Article 2 of Regulation No 4064/89 and committed a manifest
error of assessment on the ground that the contested decision
strengthened Lagardère's dominant position.
It also submits
that the Commission's acceptance of a divestiture commitment,
neither the principle nor the conditions for implementation of
which are such as to enable effective competition to be
restored, constitutes an infringement of Article 8(2) of Regu-
lation No 4064/89. Finally, the applicant alleges failure to give
reasons for the contested decision as regards the effect of that
commitment on the structure of the market in its current state.

(1) OJ L 125 of 28.4.2004, p. 54.
(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings OJ L 257/90 p.
13.