Case T-301/04: Action brought on 28 July 2004 by Clearstream Banking Aktiengesellschaft and Clearstream International sociéte anonyme Luxembourg against the Commission of the European Communities
Date: 2004-10-23
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), dominant position, financial institution, financial market, provision of services

23.10.2004

EN

Official Journal of the European Union

C 262/39

Action brought on 15 July 2004 by easyJet Airline
the
Company Limited against

the Commission of

nance on any market and the applicability of Article 82 EC to
their agreement.

European Communities

(Case T-300/04)

(2004/C 262/74)

(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 15 July 2004 by easyJet Airline
Company Limited, Luton, United Kingdom, represented by Mr
J. Cook and Ms L. Mills Solicitors.

The applicant claims that the Court should:

— Annul the Commission's Decision of 7 April 2004 relating
to a proceeding under Article 81 of the EC Treaty (Case
COMP/38.284/D2 Société Air France/Alitalia Linee Aeree
Italiane S.p.A.);

— order the Commission to pay the costs.

Pleas in law and main arguments:

By the contested decision the Commission declared the provi-
sions of Article 81 paragraph 1 of the EC Treaty inapplicable
to the cooperation agreement between the airline companies
Air France and Alitalia for the period 12 November 2001 to
11 November 2007, subject to compliance with the commit-
ments in the annex to that decision.

that decision.

It claims that

The applicant, which is itself an airline company, seeks the
annulment of
the cooperation
agreement is a merger of the activities of the parties to it on
the routes between France and Italy and, as such, should have
been assessed under Council Regulation 4064/89 (1). It further
the Commission failed to define the relevant
submits that
markets correctly, by not considering the position of
the
parties to the agreement as purchasers of airport services and
concluding incorrectly that the two Paris airports are substitu-
table and that low cost carriers are not a viable alternative for
time-sensitive passengers on routes between France and Italy.

The applicant also considers that the Commission failed to
apply Article 81 paragraph 1 EC properly, by carrying out an
inadequate assessment of potential competition between the
parties to the agreement, failing to assess accurately whether
the agreement satisfies the four conditions set out in paragraph
3 of this article and basing its conclusions on manifest errors
in law and assessment. Regarding the commitments annexed to
the decision, it claims that the Commission failed to adequately
assess their effectiveness and whether they are sufficient to
restore competition. Finally, it submits that the contested deci-
sion does not contain an adequate statement of
reasons
because the Commission failed to consider the parties domi-

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

Action brought on 28 July 2004 by Clearstream Banking
Aktiengesellschaft and Clearstream International sociéte
the
anonyme Luxembourg against

the Commission of

European Communities

(Case T-301/04)

(2004/C 262/75)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 28 July 2004 by Clearstream
Banking Aktiengesellschaft, having its registered office in Frank-
furt am Main, and Clearstream International sociéte anonyme
Luxembourg, having its registered office in Luxembourg, repre-
sented by Horst Satzky and Bernhard M. Maassen, lawyers.

The applicants claim that the Court should:

— annul the Commission decision of 2 June 2004 addressed
to them in Case COMP/38.096 and which: (i) establishes
that there was abuse of a dominant market position; and (ii)
imposes an obligation to discontinue such abuse; and

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments:

By the contested decision the Commission accuses the appli-
cants of breaching Article 82 EC. In the Commission's view the
applicants abused a dominant market position by ostensibly
refusing for almost two years to provide Euroclear Bank S.A.
(‘EB’) with so-called primary clearing and settlement services in
respect of German registered shares and by applying price
discrimination over five years against EB with regard to the
provision of primary clearing and settlement services.

The applicants dispute that charge and request that the decision
be declared void. The applicants' main head of complaint
centres on the Commission's assumption that the applicant
Clearstream Banking AG (‘CB’) enjoys a dominant position on
the relevant market.

C 262/40

EN

Official Journal of the European Union

23.10.2004

The applicants contend that the negotiations between CB and
EB on the processing of securities transactions in respect of
German registered shares lasted, not for close on two years, but
for nine months at most. The reasons for the length of this
period, they argue, lay with EB and not with CB. At no point
did CB have an interest in, let alone the intention of, denying
to EB services which it provides for other clients.

The applicants submit further that the fact could not be over-
looked during negotiations that the processing of securities
transactions in respect of German registered shares had no
significance whatever for the exchange of services between CB
and EB. In their calculation of prices the applicants followed
the principle that comparable clients should be given equal
treatment. EB, they submit, is not comparable to the group of
clients which the Commission has used as the basis for its
charge of discrimination.

The applicants also contend that
the Commission never
claimed that Clearstream International S.A. Luxembourg (‘CL’)
was an undertaking with a dominant market position. For that
reason alone it could not have abused any dominant market
position. Furthermore, the objectively relevant market was inac-
curately defined in the decision. The applicants take the view
that
the distinction drawn by the Commission between
‘primary’ and ‘secondary’ processing services cannot be based
on objective grounds and is even contradictory. There is, they
argue, only one single objectively relevant market for clearing
and settlement. CB does not have a dominant position on this
objectively relevant market
for all clearing and settlement
services. Neither CB nor CI is thus a party to which the rule in
Article 82 EC can be addressed. The decision must be quashed
in any event on grounds of erroneous market definition and —
consequently — of the absence of market domination.

Action brought on 26 July 2004 by Maison de l'Europe
the
Avignon Méditerranée against

the Commission of

European Communities

(Case T-302/04)

(2004/C 262/76)

(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 26 July 2004 by Maison de l'Europe
Avignon Méditerranée, established in Avignon (France), repre-
sented by François Martineau, lawyer.

The applicant claims that the Court should:

— order the Commission to pay the entirety of the recoverable
fixed in the sum of

the amount of which is

costs
EUR 10 000.

Pleas in law and main arguments:

According to the applicant, the Commission had since 1996
informally allowed the applicant
to set up an Info Point
Europe. In 2000, the applicant entered into an agreement with
the Commission for the creation of an Info Point Europe, in
the applicant's view thereby formalising the situation. In 2004,
the agreement was terminated by the Commission.

By this action, the applicant seeks to have the Commission
held contractually liable in order to obtain payment for the
supplies rendered by the applicant since 1996 in the context of
its task as a European information centre for the Commission.

According to the applicant, the Commission has breached its
contractual obligations and is
late
payment, for services rendered during the festival of Avignon
and for the cost of running a European documentation centre
since 1996.

liable for

interest

for

Action brought on 29 July 2004 by European Dynamics
SA against the Commission of the European Communities

(Case T-303/04)

(2004/C 262/77)

(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 29 July 2004 by European
Dynamics SA, Athens, Greece, represented by Mr S. Pappas,
lawyer.

The applicant claims that the Court should:

— annul

the Commission's Contract Notice 2003/S249-

221337 ESP-DIMA;

— annul the Commission's call

for tenderers PO/2003/192

(ESP-DIMA);

— annul the Commission's Decision of 4 June 2004 ranking
the offer of European Dynamic's consortium only second
after the first successful tenderer;

— annul the Commission's Decision of 14 July 2004 rejecting
the applicant's appeals against the award of the tender;

— order the Commission to pay the sum of EUR 394 066.76
in respect of its failure to perform its financial obligations
to the Maison de l'Europe Avignon Méditerranée;

— order the Commission to pay European Dynamic's legal
and other fees and expenses incurred in connexion with
this application.