Case T-418/05: Action brought on  9 November 2005  — Investire Partecipazioni v Commission
Date: 2006-01-28
Institutions: Court of First Instance
Subjects: Community support framework, European Commission, Structural Funds, action for annulment (EU), balance of payments assistance, investment aid, venture capital

28.1.2006

EN

Official Journal of the European Union

C 22/21

Applicant's claims

The applicant claims that the Court should annul the Commis-
sion Decision of 15 November 2005, Case COMP/M.3986 Gas
Natural/Endesa.

Pleas in law and main arguments

Article 5 of the Regulation on concentrations by departing
from the Commission's practice and conflicting with the princi-
ples set out in the Notice on calculation of turnover.

The applicant adds that in relation to the adjustments, which
the Decision examines in the light of the Notice on calculation
of turnover, a number of those adjustments comply with the
strict application of the Community accounting criteria in force
and they should not be confused with adjustments in accord-
ance with Article 5 of the Regulation on concentrations. In any
event, all the adjustments which are examined in the Decision
should be recognised as fulfilling the objective of determining
the real economic value of the undertakings which are the
subject of the concentration.

The application seeks the annulment of the Commission Deci-
the public bid
sion of 15 November 2005 declaring that
announced on 5 September 2005 by Gas Natural SDG to
acquire 100 % of the shares of Endesa S.A. does not result in a
concentration with a Community dimension.

Lastly, the applicant submits that the Decision, by incorrectly
defining the exclusive competence of the Commission, infringes
the principle of legal certainty and is contrary to the uniform
application of the Regulation on concentrations.

The action for annulment against the Commission raises, as a
preliminary matter, the existence of several procedural defects.
In that regard, the applicant states, first of all, that the contested
decision should have been adopted prior to the decision on
referral, provided for in Article 22 of
the Regulation on
concentrations, since it is clear from the wording of that provi-
sion itself that decisions relating to requests for a referral must
relate to concentrations which comply with the threshold laid
down by the laws of one or more countries and which lack a
Community dimension.

Second, the applicant criticises the Commission for lack of
transparency in the procedure and the resulting infringement
of its rights of defence.

(1) OJ L 24, of 29.1.2004, p. 1.

Action brought on 9 November 2005 — Investire Parteci-
pazioni v Commission

(Case T-418/05)

(2006/C 22/39)

Language of the case: Italian

Thirdly, the applicant asserts that the Commission should have
requested the suspension of the national proceedings that were
taking place in parallel before the national authorities. The
applicant considers that the fact that such a suspension was not
requested in itself presupposes a serious procedural omission in
the light of the basic principles of the system of control of
concentrations.

Parties

As regards the merits, the action raises the infringement of
specific articles of Regulation (EC) No 139/2004 (1) and the
existence of manifest errors of assessment. Thus, on one hand
the Decision infringes, in the applicant's view, the rules of juris-
diction established in the Regulation on concentrations,
in
trying to shift the burden of proof concerning the definition of
the Community dimension onto Endesa, which is manifestly
incompatible with the public policy nature of the rules which
establish the exclusive competence of the Commission.

Applicant(s): Investire Partecipazioni S.p.A. (Italy) (represented
by: Gian Michele Roberti and Alessandra Franchi)

Defendant(s): Commission of the European Communities

Form of order sought

Likewise, the applicant maintains that by failing to take into
the last
consideration Endesa's consolidated accounts
accounting year, which were properly drawn up in accordance
with Community accounting criteria (NIC/NIIF) in force at the
time when the concentration took place, the Decision infringes

for

The applicant(s) claim(s) that the Court should:

— annul the Commission decision of 11 August 2005, file No
08405, and the supplementary decision of 23 August
2005, file No 08720;

C 22/22

EN

Official Journal of the European Union

28.1.2006

— in the alternative, declare unlawful under Article 241 EC
and inapplicable paragraph B(12) and paragraph C(2) of
datasheet No 19 annexed to the Commission decision of 23
April 1997 (97/322/EC);

— order the Commission to pay the costs.

gement of the general principles of legal certainty, protec-
tion of legitimate expectations and proportionality, in rela-
tion to the conduct of, and the positions taken during the
management failures of the Piedmont Fund, by both the
Piedmont Region and the Commission, regarding interpre-
tation of the legislation at issue.

Pleas in law and main arguments

The present application concerns assistance from a venture-
capital fund for an undertaking (Sys S.p.A.) to enable the latter
to make an investment in an area which is eligible under objec-
tive 2. By its application, the applicant Investire Partecipazioni
S.p.A. asks the Court of First Instance to annul the Commission
decision of 11 August 2005, file No 08405, concerning the
Commission's final position on financial corrections for the
purposes of Article 24 of Regulation (EEC) No 4253/88 (1) in
relation to Measure 1.5 of
the Piedmont SPD, objective 2
(1997 — 1999) — venture-capital fund for an investment in
the company Sys S.p.A. — and of the supplementary decision
of 23 August 2005, file No 08720. It follows from those two
decisions
the ineligible Community contribution was
EUR 542 277.6, corresponding to the Community participation
in the venture-capital fund contribution to the undertaking Sys
S.p.A.

that

In support of
following pleas in law:

its claims,

the applicant puts forward the

— In the first place, Investire Partecipazioni S.p.A. considers
that, by adopting the contested decisions, the Commission
committed a manifest error of assessment in fact and in
law. The Commission erroneously assessed the
facts
concerning the investment in the company Sys S.p.A. and
proceeded to misapply the relevant legislation, in particular
the provisions of datasheet number 19 concerning eligible
expenditure under the Structural Funds,
‘Financial engi-
neering: venture-capital funds’, annexed to the Commission
decision of 23 April 1997, and Article 24 of Regulation No
4253/88. The applicant emphasises in that connection that
the company Sys S.p.A. had in fact
taken appropriate
action unequivocally directed towards setting up an opera-
tional network in the objective 2 zone (2).

— Second,

the applicant considers

in adopting the
contested decision, the Commission infringed the principle
of sound financial management laid down in Article 274
EC and in Article 24 of Regulation No 4253/88.

that,

— In the alternative, that is to say in the event of the interpre-
tation of the relevant legislation made by the Commission
being held to be correct,
Investire Partecipazioni S.p.A.
considers
the decisions with which the present
that
proceedings are concerned in any event constitute an infrin-

(1) Council Regulation (EEC) No 4253/88 of 19 December 1988,
laying down provisions for implementing Regulation (EEC) No
2052/88 as regards coordination of the activities of the different
Structural Funds between themselves and with the operations of the
European Investment Bank and the other existing financial instru-
ments (OJ L 374 of 31.12.1988, p. 1).

(2) Commission Decision (97/322/EC) of 23 April 1997 modifying the
decisions approving the Community support frameworks, the single
programming
initiative
and
programmes in respect of Italy (OJ L 146 of 5.6.1997, p. 11).

Community

documents

the

Action brought on 21 November 2005 — Combescot v
Commission

(Case T-422/05)

(2006/C 22/40)

Language of the case: Italian

Parties

Applicant(s): Philippe Combescot (Lecce, Italy) (represented by:
A. Maritati and V. Messa, lawyers)

Defendant(s): European Commission

Form of order sought

The applicant(s) claim(s) that the Court should:

— annul the Commission's decision of 29 July 2004 to reas-
sign him to Brussels headquarters, such decision being in
substitution for a previous, similar decision of 13 June
2003;

— acknowledge that the applicant has suffered non-material
damage, to his health and to his image as a result of the
decision, with serious repercussions on his psychological
balance;