Case T-399/04: Action brought on 7 October 2004 by Scandlines Sverige AB against the Commission of the European Communities
Date: 2005-01-08
Institutions: Court of First Instance
Subjects: European Commission, Sweden, action for annulment (EU), charges for use of infrastructure, dominant position, ferryboat, harbour installation, restriction on competition

C 6/40

EN

Official Journal of the European Union

8.1.2005

Decision of
of Appeal:

the Board

Pleas in law:

Annulment of
the Opposition
Division decision, the matter being
referred back to it for reconsidera-
tion.

Misapplication of Article 8(1)(b) of
Regulation (EC) No 40/94 (likeli-
hood of confusion).

Action brought on 7 October 2004 by Scandlines Sverige
AB against the Commission of the European Communities

(Case T-399/04)

(2005/C 6/78)

(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 7 October 2004 by Scandlines
Sverige AB, Helsingborg, Sweden, represented by C. Vajda QC
and R. Azelius and K. Azelius, lawyers.

The applicant claims that the Court should:

— annul the Decision of the Commission of the European
Communities, of 23 July 2004, rejecting the applicant's
complaint of 2 July 1997;

— remit the case back to the Commission for re-examination

of the complaint in the light of the Court's judgment;

— order the Commission to indemnify the applicant for the
costs of these proceedings irrespective of the outcome.

Pleas in law and main arguments

The applicant is Swedish company whose main activity consists
in being the port agent of a ferry-operator. The applicant filed
a complaint with the Commission, against Helsingborgs Hamn
AB (HHAB), a company responsible for running the port in
Helsingborg in Sweden and for setting port charges. The appli-
cant considered that HHAB charged the applicant excessive
port charges, abusing its dominant position in breach of Article
82 EC. This complaint was rejected by the contested decision.

In support of its application the applicant contends that the
Commission erred in concluding that port charges to ferry-
operators were not excessive. According to the applicant the

Commission's cost/price analysis established that HHAB has
been making returns, on its ferry business, of over 100 % the
value of the equity employed in this business. The applicant
argues that such returns cannot be achieved in a competitive
market and are therefore excessive, unfair and abusive.
It
considers that in rejecting that conclusion the Commission
misapplied the term ‘economic value’ and failed to apply the
principle of proportionality or the correct burden of proof. It
the Commission wrongly rejected the
also contends that
comparison between prices charged to ferry-operators and
those charged to cargo-operators as well as the comparison
between prices charged at Helsingborg and those charged at
Elsinore, at the other end of the same route. The applicant also
challenges the Commission's finding that there was no price
discrimination in the meaning of Article 82 EC between ferry
and cargo operators. According to the applicant, the Commis-
sion wrongly concluded that services provided by HHAB to
those two branches are not equivalent and that there was no
competitive disadvantage to the ferry operators.

inadequate and contradictory and for

The applicant further claims that the Commission's reasoning is
wrong,
reason
violates Article 253 EC. It also invokes a breach of its right to
be heard under Article 6 of Regulation 2842/98 and contends
that the Commission failed to carry out a proper investigation
within a reasonable time, thereby breaching Article 10 EC,
Article 6 of the European Convention of Human Rights and
the principle that the Commission must act within a reasonable
time.

this

Action brought on 8 October 2004 by Nadine Schmit
against the Commission of the European Communities

(Case T-419/04)

(2005/C 6/79)

(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 October 2004 by Nadine Schmit,
represented by Pierre Paul Van
residing in Ispra (Italy),
Gehuchten and Pierre Jadoul,
lawyers, with an address for
service in Luxembourg.