Case T-274/06: Action brought on 6 October 2006 — Estaser El Mareny v Commission
Date: 2006-12-02
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, distributive trades, exclusive distribution agreement, motor fuel, oil industry

C 294/58

EN

Official Journal of the European Union

2.12.2006

Pleas in law and main arguments

By its decision C(2005) 1962 final of 5 July 2005 (State Aid
No C 20/04, ex NN 25/04), the Commission declared certain
restructuring aid granted by Poland to the steel producer Huta
Częstochowa SA incompatible with the common market and
ordered its recovery. The applicant ISD Polska is successor to
the beneficiary of the aid and a subsidiary of the second appli-
cant, Industrial Union of Donbass, which holds all of its shares.
The two applicants are referred to in the contested decision
among the undertakings required jointly and severally to repay
the aid declared incompatible with the common market.

In support of their application for the partial annulment of the
decision, the applicants rely on six pleas in law.

By their first plea, they claim that the Commission made a
manifest error of assessment of
the facts decisive for the
outcome of the investigation. They maintain that once the
assets of the original beneficiary of the incompatible aid have
been sold, those assets having been bought by ISD Polska (and
Donbass), it is the seller of the original beneficiary of the aid
which retains the benefit of that aid, and must ensure that it is
repaid. The applicants claim that in this case, if the Commis-
sion had correctly established the relevant facts concerning the
sale of the assets of Huta Częstochowa SA to ISD Polska (and
Donbass) it would have considered that, because the means of
production of Huta Częstochowa were acquired at a price
reflecting the market price, restitution of the aid had thereby
already been made to the seller. According to the applicants,
the Commission was therefore in breach of its obligation to
examine, carefully and impartially, all the relevant factors of
the case.

The second plea relied upon by the applicants alleges infringe-
ment of the right to submit comments, as recognised by Article
88 EC and Article 6 of Regulation No 659/1999 (1). They
maintain that the publication in the Official Journal of the Euro-
pean Communities of the decision to initiate the formal investiga-
tion procedure did not state in sufficient detail the aid called
into question or its amount, although according to the appli-
cants that information was known to the Commission, which
prevented them from ascertaining which aid was covered by
the investigation and evaluating the desirability of submitting
their comments.

The same alleged irregularity is the basis for the third plea
relied on by the applicants, namely infringement of the prin-
ciple of the protection of legitimate expectations. They main-
tain that if the decision to initiate the investigation procedure
had enabled Donbass to ascertain which aid was covered by
the procedure, that company could have submitted evidence to
the Commission showing, as ISD Polska and Donbass are doing
in this action, that that aid was compatible with Community
law.

tives pursued by that protocol and in consideration of the back-
ground to its adoption. That allegedly incorrect interpretation
led the Commission to require, by its decision, repayment of
State aid received before the adoption of Protocol No 8 by
companies not included in Annex 1, which designates eight
benefiting companies which are eligible for aid from Poland in
derogation from Articles 87 and 88 EC. The applicants claim
that since it acted thus without a legal basis, the Commission is
not competent to give a decision on some of the aid referred to
in the contested decision and that it therefore encroached upon
the temporal competence of other Community institutions.

The fifth plea relates to infringement of Article 14(1) of Regu-
lation No 659/1999, since the decision to recover the aid runs
counter to the principles of the protection of legitimate expec-
tations, legal certainty and equal treatment.

By their sixth plea, the applicants claim in the alternative that
the Commission infringed Regulation No 794/2004 (3) when
calculating the interest rate applicable to the recovery of the
aid in the present case.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
down detailed rules for the application of Article 93 of the EC
Treaty, OJ L 83 of 27.3.1999, p. 1.

(2) OJ 2003 L 236, p. 948.
(3) Commission Regulation (EC) No 794/2004 of 21 April 2004 imple-
menting Council Regulation (EC) No 659/1999 laying down
detailed rules for the application of Article 93 of the EC Treaty, OJ
L 140 of 30.4.2004, p. 1.

Action brought on 6 October 2006 — Estaser El Mareny v
Commission

(Case T-274/06)

(2006/C 294/118)

Language of the case: Spanish

Parties

Applicant: Estaser El Mareny SL (Valencia, Spain) (represented
by: A. Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra,
lawyers)

Defendant: Commission of the European Communities

Form of order sought

By their fourth plea, the applicants claim that the Commission
infringed Protocol No 8 to the Treaty of Accession, on the
industry (2), by interpreting
restructuring of the Polish steel
purely literally some of its provisions which, in the view of the
applicants, it should have interpreted in the light of the objec-

— annul the Commission Decision of 12 April 2006 in Case
COMP/B-1/38.348 Repsol CPP relating to a proceeding
pursuant to Article 81 of the EC Treaty;

— order the defendant to pay the costs.

2.12.2006

EN

Official Journal of the European Union

C 294/59

Pleas in law and main arguments

Action brought on 4 October 2006 — Omya v Commis-
sion

This action is brought against the decision of the Commission
of 12 April 2006 by which the defendant institution accepted
the commitments offered by REPSOL CPP in accordance with
Article 9(1) of Council Regulation (EC) No 1/2003 of 16
December 2002 on the implementation of the rules on compe-
tition laid down in Articles 81 and 82 of the Treaty (1).

That decision was made in a proceeding initiated following the
application by REPSOL CPP for negative clearance or, failing
that, an individual exemption in respect of the standard agree-
ments and/or contracts by means of which it carried out its
fuel distribution activities for motor vehicles through service
stations in Spain.

Parties

(Case T-275/06)

(2006/C 294/119)

Language of the case: English

In the offer of commitments accepted by the Commission,
REPSOL CPP undertook,
to increase the annual
inter alia,
number of service stations which may change supplier, for
which it undertook to offer the bare owners/operators of the
service stations the possibility of recovery of the right in rem
to the usufruct or over the buildings subject, however,
to
compliance with a series of conditions by the operator.

In support of its claims, the applicant, occupier-operator of a
service station which had concluded a supply contract with
REPSOL CPP, argues:

(a) that REPSOL CPP's contracts with the service stations
infringed and infringe the time-limits laid down by Com-
munity provisions for non-compete clauses. In fact, prior to
the offer of commitments on the part of REPSOL CPP, the
Commission was preparing to give a decision declaring that
there was an infringement and ordering that it cease;

(b) that, accordingly, the contracts at issue must be regarded as

void under Article 81(2) of the EC Treaty;

(c) that the Commission cannot seek to accept those contracts
by means of commitment proceedings, when it does not
require the infringing party to bring the restrictive practice
to an immediate end, but only requires it to grant the possi-
bility of early recovery. On the other hand, despite the fact
that it is the unduly lengthy term of the clauses restricting
competition which infringes the competition provisions, it
requires the operator, in order to recover its right, to pay a
price calculated on the basis, among other things, of the
remaining years of the term laid down for the right in rem.

Finally, the applicant pleads infringement of the principle in
accordance with which persons subject to Community law may
not benefit from their own unlawful acts or become enriched
without just cause.

(1) OJ L 1 of 4.1.2003, p. 1.

Applicant: Omya AG (Oftringen, Switzerland) (represented by: J.
Flynn, Barrister, and C. Ahlborn, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

— […] Omya therefore respectfully asks the Court to annul
the decision and to order the Commission to pay Omya's
costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision
C(2006) 3163 final of 19 July 2006 in merger case COMP/
M.3796 by which the Commission declared the applicant's take
over of the precipitated calcium carbonate business from J.M.
Huber Corporation compatible with the common market and
the functioning of the Agreement on the European Economic
Area. The Commission further imposed certain conditions and
obligations with which the applicant is to comply.

(a)

The applicant contends that
the competition concerns
which the Commission has identified are unfounded and (b)
that in any event the remedies effectively imposed on the appli-
cant are inappropriate and are not justified by the concerns
identified by the Commission and are not capable of producing
the effects claimed by the Commission.

The applicant invokes three pleas in law in support of its appli-
cation.

Firstly, the applicant submits that the Commission manifestly
erred in concluding that the transaction would significantly
impede effective competition.

Secondly, the applicant claims that the Commission manifestly
erred in its assessment and breached the principle of propor-
tionality in requiring the disposal of the Kuusankoski plant.