Case T-464/04: Action brought on 3 December 2004 by Impala against the Commission of the European Communities
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: European Commission, Internet, action for annulment (EU), distributive trades, dominant position, economic concentration, music, patents licence, restrictive-practice authorisation

C 6/46

EN

Official Journal of the European Union

8.1.2005

The applicant claims that the Court should:

Pleas in law and main arguments

— Annul the Appointing Authority's decision adopted on 19
July 2004 rejecting the applicant's complaint dated 26
February 2004, by which she challenged the decision
refusing to promote her from Grade A5 to Grade A4, for
the 2003 promotion procedure;

The applicant submitted a tender for a service contract for a
monitoring system of
the implementation of projects and
programmes of external co-operation financed by the European
Community — lot no. 2 covering ACP, South Africa and Cuba,
which was published the 26 May 2004 (1).

— If, and in so far as necessary, annul also the Appointing
Authority's original decision in November 2003 refusing to
promote the applicant from Grade A5 to Grade A4, for the
2003 promotion procedure;

— Order the Defendant to pay the costs.

The Commission rejected the tender by decision of 18
November 2004 on the grounds that there was a discrepancy
between the applicants financial offer and technical offer as to
the number of man/days required. The Commission upheld its
decision by letter of 30 November 2004.

Pleas in law and main arguments

The pleas in law and main arguments are the same as those in
Case T-432/04.

The applicant submits that the Commission's decision is based
on an error of fact since, according to the applicant, there was
no such discrepancy between the two parts of the companies
tender.

The applicant further alleges that the Commission ought to
have sought to clarify the alleged disrepancy and that in not
having done so before rejecting the applicants tender the
Commission has taken a disproportionate action and failed to
exercise due diligence, whereby it infringed its duty of care.

Action brought on 2 December 2004 by Danish Manage-
the European
ment A/S against

the Commission of

(1) OJ S 102-081573.

Communities

(Case T-463/04)

(2005/C 6/90)

(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 2 December 2004 by Danish
Management A/S, Viby J, Denmark, represented by C. Kennedy-
Loest and C. Thomas, Solicitors.

The applicant claims that the Court should:

— annul the Commission's decisions of 18 November 2004
and 30 November 2004 rejecting the tender submitted by
the applicant in tender procedure service contract for a
monitoring system of the implementation of projects and
programmes of external co-operation financed by the Euro-
pean Community — lot 2: ACP, South Africa and Cuba —
EuropeAid 119453/C/SV/Multi;

Action brought on 3 December 2004 by Impala against
the Commission of the European Communities

(Case T-464/04)

(2005/C 6/91)

(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 3 December 2004 by Impala, Brus-
sels (Belgium), represented by S. Crosby and J.Golding, Solici-
tors.

The applicant claims that the Court should:

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

— Annul the Commission's decision of 19 July 2004 in case

no. COMP/M.3333 — Sony/BMG in its entirety;

8.1.2005

EN

Official Journal of the European Union

C 6/47

— In the alternative, annul the contested decision insofar as it

relates to either or all of the following:

— collective dominance on the market for licences for

online music;

— single dominance in the markets for distribution of

online music;

— coordination of the parties' respective music publishing

businesses;

— Order the Commission to bear the costs incurred by the

applicant in connection with this action.

Pleas in law and main arguments

The applicant is an international association with the purpose
of promoting the general interests of its members, which are
independent music companies. It requests the annulment of the
Commission's decision approving the merger between the
global recorded music businesses of Bertelsmann AG and Sony
Corporation of America.

In support of its application it submits that in authorising the
merger the Commission violated Article 253 EC, Article 81
paragraph 1 EC, Regulation 4064/89 (1) as well as the rules of
law governing their application and committed manifest errors
of assessment:

— by finding that a collective dominant position did not exist

in the market for recorded music prior to the merger;

— by finding that the merger did not strengthen an existing

collective dominant position in that market;

— by finding that the merger would not create a collective
dominant position in the market for recorded music, in the
market for licences for online music or in the market for
the distribution of online music;

— by finding that the merger would not lead to the coordina-
tion of the parties' respective music publishing businesses.

(1) OJ L 395, p. 1