Case T-441/07: Action brought on 29 November 2007 — Ryanair v Commission
Date: 2007-11-29
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for failure to act, air transport, competition law, complaint to the Commission

9.2.2008

EN

Official Journal of the European Union

C 37/27

Pleas in law and main arguments

Form of order sought

of

the

seeks

applicant

annulment

Commission
The
Decision C(2007) 4257 final of 19 September 2007 in Case
COMP/E-1/39.168 — PO/Hard Haberdashery: Fasteners, by
which the Commission found that the applicant, together with
other undertakings, had infringed Article 81 EC by among
fixing minimum prices
others exchanging price information,
and sharing markets.

— To declare in accordance with Article 232 EC that

the
Commission has failed to act pursuant to its obligations
under the EC Treaty by not having defined a position with
respect
lodged with the
Commission on 3 November 2005 followed by a letter of
formal notice of 2 August 2007;

to the applicant's complaint

In support of its application, the applicant submits that the
Commission's assessment of the evidence as a whole is vitiated
by manifest errors of assessment. According to the applicant the
Commission failed to prove to the requisite standard that the
applicant was a party to a bilateral market-sharing agreement
with Prym between January 1977 and July 1998.

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible; and

In the alternative, the applicant submits that the Commission
failed to prove that any infringement continued beyond
19 September 1997 or failed to prove a single continuous
for the period to 15 July 1998 entitling the
infringement
Commission to fine the applicant for an infringement lasting 21
½ years.

The applicant further, alternatively, claims that the Commission
infringed the applicant's fundamental procedural rights under
Article 6(3)(d) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms to examine or have
examined witnesses against
in proceedings of a criminal
nature.

it

Finally, the applicant alleges, in the alternative, that the Commis-
sion erred in mechanically applying a multiplier of 215 % to
the basic amount of the fine for a duration of 21 ½ years,
rather than exercising its discretion under the applicable fining
guidelines.

— to take such further action as the Court may deem appro-

priate.

Pleas in law and main arguments

It is submitted as the main plea, that the Commission has failed
the
to conduct a diligent and impartial examination of
complaint
lodged by the applicant, alleging the grant of
unlawful aid in the form of advantages conferred by the Italian
State to Volare, through the write-off of around EUR 20 million
in debts owned by Volare to Italian airports and reductions in
airport charges and fuel costs. Alternatively, as a subsidiary plea,
the applicant submits that the Commission failed to define its
position on the applicant's complaint alleging anticompetitive
discrimination and, hence, an infringement of Article 82 EC.

Action brought on 29 November 2007 — Ryanair v
Commission

(Case T-441/07)

(2008/C 37/43)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

the Court

found that

The applicant claims that the measures that are subject to its
complaint constitute State aid, fulfilling all conditions set out in
Article 87(1) EC. Furthermore, the applicant contends that, in
the advantages
the event
conferred to Volare were not attributable to the State, because
Italian airports might have determined their charges in an
autonomous manner, the applicant submits that such advan-
tages would amount to anticompetitive discrimination which
infringes
cannot be justified by objective reasons and hence,
Article 82 EC.

some of

The applicant further submits that the Commission was under
an obligation,
in accordance with the provisions of Council
Regulation (EC) No 1/2003 (1) and Commission Regulation (EC)
No 773/2004 (2), to carefully examine the evidence of fact and
of law brought to its notice by the complainant in order to
decide, within a reasonable time, whether it should initiate
proceedings to establish the breach or reject the complaint. The
Commission did not take any decision following receipt of the
complaint, confirming the breach or dismissing the complaint
after having informed the applicant pursuant to Article 7 of
Regulation (EC) No 773/2004, or, finally, issue a fully reasoned
decision not to pursue the complaint due to lack of Community
interest.

C 37/28

EN

Official Journal of the European Union

9.2.2008

As a result, the applicant claims that a prima facie infringement
of competition law existed and the Commission should have
taken less than 21 months to reach such a conclusion and,
the
accordingly,
Commission's failure to act therefore exceeded reasonable limits.

to initiate proceedings. The duration of

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the
implementation of the rules on competition laid down in Articles 81
and 82 of the Treaty (Text with EEA relevance) (OJ L 1, p. 1).

(2) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating
to the conduct of proceedings by the Commission pursuant to Arti-
cles 81 and 82 of the EC Treaty (Text with EEA relevance) (OJ L 123,
p. 18).

Action brought on 30 November 2007 — Ryanair v
Commission

(Case T-442/07)

(2008/C 37/44)

Language of the case: English

Parties

Applicant: Ryanair Ltd (Dublin,
Vahida, lawyer)

Ireland)

(represented by: E.

Defendant: Commission of the European Communities

Form of order sought

— To declare that the Commission has failed to define its posi-
the EC Treaty,
to its obligations under
tion pursuant
including, in particular, Article 232 EC, in response to the
applicant's complaints of 3 November and 13 December
2005, 16 June and 10 November 2006, and its letter of
formal notice of 2 August 2007;

— to order the Commission to pay the entire costs, including
the costs incurred by the applicant in the proceedings even
if, following the bringing of the action, the Commission
takes action which in the opinion of the Court removes the
need to give a decision or if the Court dismisses the applica-
tion as inadmissible; and

— to take such further action as the Court may deem appro-

priate.

3 November 2005, 13 December 2005, 16 June 2006 and
10 November 2006, followed by a letter of formal notice of
2 August 2007.

It is submitted as the main plea, that the Commission has failed
to conduct and conclude a diligent and impartial examination
of the complaints lodged by the applicant, alleging the grant of
unlawful aid in the form of advantages conferred by the Italian
State to airlines Alitalia, Air One and Meridiana. Alternatively, as
a subsidiary plea, the applicant submits that the Commission
failed to define its position on the applicant's complaints alle-
ging anticompetitive discrimination and, hence, an infringement
of Article 82 EC.

financing of Alitalia's

The applicant claims that the measures that are subject to its
complaint, namely, (i) payment to Alitalia of ‘9/11 compensa-
tion’ aid, (ii) favourable conditions surrounding the transfer of
Alitalia Servizi to Fintecna, (iii) the failure of the Italian State to
claim payment of debts owed by Alitalia to Italian airports,
(iv) public
redundancy payments,
(v) rebates on fuel costs, (vi) reductions in airport charges at
Italian hubs, (vii) the transfer of over 100 Alitalia employees to
Meridiana and Air One and (viii) discriminatory restrictions on
the operation of the applicant at regional airports including
Ciampino airport, are attributable to the Italian State, constitute
lost revenue to it and specifically benefit to Alitalia as well as
Air one and Meridiana for some of the measures concerned.
According to the applicant, these measures constitute State aid,
fulfilling all conditions set out in Article 87(1) EC.

Alternatively, as a subsidiary plea, the applicant submits that the
failure of Italian airports to obtain payment of debts owed by
Alitalia, the reductions in airport charges at Italian hubs, the
rebates on fuel costs and the discriminatory restrictions on the
operation of the applicant at regional airports constitute an
infringement of competition law. Accordingly,
the applicant
contends that, in the event that the Court found that some of
the advantages conferred to Alitalia, Air One and Meridiana
were not attributable to the State, because Italian airports and
fuel providers that have granted the above advantages would
have been acting in an autonomous manner, such advantages
would amount to anticompetitive discrimination which cannot
be
infringe
Article 82 EC.

by objective

justified

reasons

hence,

and

Moreover, the applicant contends that it has a legitimate interest
to bring such a complaint both as a customer of airport services
and aviation fuel and as a competitor of Alitalia, Air One and
Meridiana.

Pleas in law and main arguments

By means of its application, the applicant initiated an action
under Article 232 EC, claiming that the Commission has failed
to define its position in connection with the complaints filed on

The applicant further submits that the Commission was under
an obligation to act,
in accordance with the provisions of
Council Regulations (EC) 659/1999 (1) and (EC) No 1/2003 (2)
and Commission Regulation (EC) No 773/2004 (3). The
Commission did not however take any action upon receipt of
the complaints, nor did it take position upon receipt of its letter
of formal notice.