Case T-339/08: Action brought on 18 August 2008 — BVGD v Commission
Date: 2008-08-18
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), precious stones, purchase, trade restriction

C 272/40

EN

Official Journal of the European Union

25.10.2008

According to the applicants, even where a comparison between
the two systems was made on the basis of such factors, it is
obvious that, in comparison with the general system, the special
system confers practically no tax advantage in terms of the
applicable rate.

Action brought on 18 August 2008 — BVGD v
Commission

(Case T-339/08)

(2008/C 272/80)

Language of the case: English

Parties

Applicant: Belgische Vereniging van handelaars in- en uitvoerders
geslepen diamant (BVGD) (Antwerp, Belgium) (represented by:
L. Levi and C. Ronzi, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— To declare the present action admissible;

— To annul the Commission decision dated 5 June 2008 by
which the Commission rejected the complaint lodged by the
applicant, in relation to the issue of input foreclosure, for
the reason that there are insufficient grounds for acting on it
(Case COMP/39.221/E-2-De Beers/DTC Supplier of Choice)

— To order the Commission to provide:

— a proper and meaningful version of the replies provided
by De Beers and Alrosa to the Commission in the frame-
work of the so-called ‘supplementary procedure’;

— all non-confidential versions of

the complaints and
related documents
submitted to the Commission
concerning the SOC and the Trade Administrative Agree-
ment between De Beers and Alrosa;

— all non-confidential versions of the investigation docu-
ments concerning the SOC and the Trade Administrative
Agreement between De Beers and Alrosa;

— the request filed by Alrosa in Case T-170/06;

— the statements of objections to which it refers in the

‘supplementary rejection decision’;

— the annual reports on De Beers' commitments drafted by

the Trustee;

— To order the Commission to pay all the costs.

Pleas in law and main arguments

Following the annulment by the Court of First Instance, on
11 July 2007, of the Commission decision of 22 February 2006
(Case T -170/06 Alrosa v Commission),
the Commission
decided to open a supplementary procedure based on Article 7
of Regulation (EC) No 773/2004, in order to assess the possible
impact of the annulment to the commitment decision on the
overall conclusion on input foreclosure as set out in the decision
of 26 January 2007 (2007)D/200338 (Case COMP/39.221/E-2-
De Beers/DTC Supplier of Choice) rejecting the applicant's
complaint filed with the Commission on 14 July 2005 alleging
in connection with the
violations of Articles 81 and 82 EC,
Supplier of Choice system for distribution of rough diamonds
applied by the De Beers group (‘the rejection decision’). The
legality of
this decision was challenged by the applicant by
action lodged at the Court on 6 April 2007, which is currently
subject to proceedings in Case T-104/07 (1).

By means of the present action the applicant seeks annulment
of Commission's supplementary decision of 5 June 2008 (2008)
D/203543 made pursuant to Regulation (EC) No 773/2004 (2)
by which the Commission concluded that
there were no
grounds to reconsider the rejection decision in so far as, in rela-
tion to input foreclosure, there was an insufficient degree of
Community interest for conducting a further investigation into
the alleged infringements.

The applicant raises three main pleas in law in support of its
claims:

First, the applicant claims that Article 7 of Regulation (EC)
No 773/2004 is not the correct legal basis for the supplemen-
tary procedure and the impugned decision. In fact, it submits
that the said provision does not empower the Commission to
re-examine a situation but only deals with the rejection of
complaints and allows the Commission thereby to inform the
complainant about insufficient grounds to act on a complaint,
setting a time-limit within which the complainant may express
its views in writing. Moreover, the applicant submits that the
Commission misapplied the general
legal principles on the
retroactive revocation of administrative acts.

that

its procedural

the applicant contends

rights
Second,
deriving from Articles 7 and 8 of Regulation (EC) No 773/2994
were breached since the applicant was prevented from exercising
its right of access to documents on which the Commission
based its provisional assessment. On this point the applicant
the limited
the Commission did not show that
argues that
access to the file could be justified by the necessity to guarantee
the protection of confidentiality understood under commercial
secrets.

Third, the applicant claims that the contested decision infringes
Articles 2 and 3 EC and the notion of Community interest, as
well as the duty to state reasons.

(1) OJ 2007 C 129, p. 18.
(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 2004
L 123, p. 18).