Case T-339/04: Action brought on 10 August 2004 by Wanadoo S.A. against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: EU control, European Commission, Internet access provider, action for annulment (EU), competition law, jurisdiction

23.10.2004

EN

Official Journal of the European Union

C 262/53

Action brought on 10 August 2004 by Wanadoo S.A.
against the Commission of the European Communities

Action brought on 11 August 2004 by France Télécom
the European Com-
S.A. against

the Commission of

(Case T-339/04)

(2004/C 262/97)

(Language of the case: French)

munities

(Case T-340/04)

(2004/C 262/98)

(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 10 August 2004 by Wanadoo S.A.,
established in Issy-les-Moulineaux (France),
represented by
Hugues Calvet et Marie-Cécile Rameau, lawyers.

The applicant claims that the Court should:

— annul the decision of the Commission of 18 May 2004
ordering the applicant, and all undertakings directly or
indirectly controlled by it,
to an inspection
to submit
pursuant
to Article 20(4) of Council Regulation No
1/2003 (1);

— order the Commission to pay the costs.

Pleas in law and main arguments:

In support of its action, the applicant submits that by adopting
the contested decision the Commission infringed the duty of
cooperation with the national courts and authorities pursuant
to Article 10 EC and Regulation No 1/2003. According to the
applicant, the Commission failed to disclose to the national
court which authorised the inspection in question the existence
of proceedings pending before
French competition
authority concerning the alleged infringements of Article 82 EC
by the applicant and of a decision of the same authority of 11
May 2004. Furthermore, the applicant submits that the French
competition authority remains in charge of the case and that
consequently the Commission should not have intervened in it.

the

further submits that

The applicant
the contested decision
infringes the obligation carefully and impartially to examine all
relevant evidence in the case, the duty to state reasons and the
principle of proportionality. Lastly, it alleges a manifest error of
assessment.

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJ 2003 L 1 of 4.1.2003, p. 1).

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 11 August 2004 by France Télécom
S.A., established in Paris, represented by Christophe Clarenc
and Javier Ruiz Calzado, lawyers.

The applicant claims that the Court should:

— annul Commission Decision C (2004) 1929 of 18 May
2004 ordering France Télécom S.A. and all undertakings
directly or indirectly controlled by it to submit to an inspec-
tion pursuant to Article 20(4) of Regulation No 1/2003
(Case No COM/C-38.916);

— order the Commission to pay in full the costs incurred by
France Télécom in bringing the present action for annul-
ment.

Pleas in law and main arguments:

The subject matter of the decision in question is ‘the suspected
imposition of unfair selling prices in respect of high-speed
Internet access for residential customers, contrary to Article 82
EC, with the intention of restricting and deterring competitors’
(Article 1 of the contested decision) and applies to the applicant
and its subsidiary Wanadoo, and all undertakings directly or
indirectly controlled by them (Article 3). The Commission
considered that in order to confirm the alleged practices an
inspection was required pursuant to Article 20(4) of Regulation
(EC) No 1/2003 on the implementation of the rules on compe-
tition laid down in Articles 81 and 82 of the Treaty (1). It is the
decision ordering that inspection which is challenged in the
present case.

that

inspection.

It points out

there has been a breach of

In support of the form of order it seeks, the applicant first
alleges that
the duty to state
reasons. It states in this connection that it fails to understand
why it is the addressee of the decision and it is the subject of
in accordance with the
that
reasoning of its ‘Wanadoo’ decision of 16 July 2003, which
recognised Wanadoo's independence from the applicant in its
policy of fixing prices for the French residential market for
high-speed internet access services, the Commission in its deci-
sion imputes to Wanadoo, and not to France Telecom, the
allegedly unfair sale prices in question, and the alleged strategy
of deterring competitors. Moreover, the Commission failed to
explain why it found it necessary to order an inspection in
in spite of the fact that
respect of Wanadoo's selling prices,
those prices are to be maintained by it under its decision of 16
July 2003 and furthermore had just been inspected and
approved by the French competition authority.