Case T-424/08: Action brought on 16 September 2008 — Nexus Europe (Ireland)/Commission
Date: 2008-09-16
Institutions: Court of First Instance
Subjects: European Commission, European Economic Area, action for annulment (EU), fine, fraud, knowledge economy, research and development

C 6/32

EN

Official Journal of the European Union

10.1.2009

Re:

Application for a stay of execution of Commission Decision
C(2008) final of 16 July 2008 relating to a proceeding under
Article 81 EC and Article 53 of the EEA Agreement (Case
COMP/C2/38.698 — CISAC)

Operative part of the order

1. The application for interim measures is dismissed.

2. Costs are reserved.

Action brought on 18 September 2008 — SPAR
Österreichische Warenhandel v Commission

(Case T-405/08)

(2009/C 6/66)

Language of the case: German

Parties

Applicant: SPAR Österreichische Warenhandels-AG (represented
by: A.-H. Bischke, S. Brack und D. Bräunlich, lawyers)

Defendant: Commission of the European Communities

Form of order sought

— annul the defendant's decision of 23 June 2008;

— order the defendant to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant has brought an action against the decision of the
Commission of 23 June 2008 in Case COMP/M.5047 —
REWE/ADEG, by which the Commission approved the acquisi-
tion by Billa AG, a company in the German REWE Group, of
sole control of ADEG Österreich Handelsaktiengesellschaft. The
the Commission should not have
applicant
approved the concentration in accordance with Article 6(2) of
the EC Merger Regulation (1), since the undertakings given were
not sufficient to remove what the applicant considers to be
existing competition concerns.

submits

that

In support of its action, the applicant putting forward two pleas
in law:

First, the applicant submits that Article 6(1)(c) of the EC Merger
Regulation has been infringed because the Commission erred in
law when it failed to open Phase II proceedings and approved
the proposed concentration ‘REWE/ADEG’ subject to conditions
in Phase I. The Commission failed to sufficiently investigate the

effect the proposed concentration would have on competition
and therefore also misjudged the serious competition concerns
arising in connection with the proposed concentration. In detail,
the infringement consists of the following manifest errors of
assessment:

— the Commission misjudged the effect of the proposed take-
over on competition in the retail market in the whole of
Austria, because if wrongly assumed that a number of
competitors would remain in place and underestimated
ADEG's competitive potential;

— the Commission wrongly determined and wrongly assessed
the market position of the parties at regional and local level;

— the undertakings accepted by the Commission are not
appropriate for removing the existing competition concerns,
since they were assessed on the wrong basis;

— the Commission wrongly determined and wrongly assessed

the effect on competition in the labour markets.

Second, during the merger control proceedings, the Commission
infringed essential formal requirements. It infringed the appli-
cant's and the Member States' right to a fair hearing when it
failed to market
the last undertaking proposed by the
parties and failed to forward it to the Member States. Moreover,
the Commission failed to give sufficient reasons for its decision.

test

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the
control of concentrations between undertakings (the EC Merger
Regulation) (OJ 2004 L 24, p. 1).

Action brought on 16 September 2008 — Nexus Europe
(Ireland)/Commission

(Case T-424/08)

(2009/C 6/67)

Language of the case: English

Parties

Applicant(s): Nexus Europe (Ireland) Ltd (Dublin, Ireland) (repre-
sented by: M. Noonan, Barrister

Defendant(s): Commission of the European Communities

Form of order sought

— Order the Commission to pay damages in the sum of

EUR 95 418,99;

10.1.2009

EN

Official Journal of the European Union

C 6/33

— Order the Commission to pay the costs of these proceed-

ings.

Action brought on 26 September 2008 — ICO Services Ltd
v Parliament and Council

Pleas in law and main arguments

On the 31 October 2001 the applicant and the Commission
entered into a ‘shared-cost and research development’ type of
contract, as set out in Annex IV (‘Rules for financial participa-
tion by the Community’)
to the European Parliament and
Council Decision No 182/1999/EC of 22 December 1998
concerning the fifth framework programme of the European
Community for RDT activities (1998-2002) (1), whereby the
applicant, together with other contractors forming a consor-
tium, undertook to implement the project MUTEIS IST-2000-
30117, aimed at explaining and understanding the functional
and spatial diversity in Europe's digital economy from a macro
and local/urban perspective. The applicant proposed to the
Commission to participate in the project on the basis of the
‘Additional costs’ model of reimbursement
for the project's
to an exchange of correspondence
eligible costs. Further
between the parties, the Commission informed the applicant
that it had to temporarily reject personnel and overhead costs
presented by the latter and suggested that the applicant should
reconsider its participation on the basis of total eligible costs
participation or full participation with the lump sum option in
respect of overheads. An amended contract was signed by the
applicant, according to such terms, on the 30 April 2004.

On the basis of its application for damages, the applicant claims
that the Commission acted without or in excess of its powers
by purporting to amend the contract and to invoke Article 3(2)
of Annex II of the contract. The applicant submits that whilst
the Commission could have declined to accept the cost model
proposed to it by the applicant at the time the contract was
there is no provision in the contract allowing the
signed,
Commission to change the cost model
in the course of a
project. Moreover, in the absence of any reasonable grounds of
suspected fraud or financial irregularity on the part of the appli-
cant,
the Commission was not
entitled to invoke Article 3(2) of Annex II of the contract in
order to justify the alteration of the contact's terms.

the applicant submits that

Further, the applicant contends that the Commission breached
its contractual obligations, thereby infringing Article 1134, first
paragraph, of the Belgian Civil Code, according to which agree-
ments legally entered into operate as law for those who engaged
in them. According to the applicant, it is the cost model agreed
by the parties when signing the contract that should prevail for
its duration and the Commission therefore breached the
contract in requiring the applicant to change the cost model as
agreed by the parties.

In addition, the applicant submits that the Commission brea-
ched the principle of legitimate expectations and the principle
of sound administration.

(1) OJ 1999 L 26, p. 1.

(Case T-441/08)

(2009/C 6/68)

Language of the case: English

Parties

Applicant:
(represented by: S. Tupper, Solicitor)

ICO Services Limited (Slough, United Kingdom)

Defendants: European Parliament and Council of the European
Union

Form of order sought

— Order

that Decision No 626/2008/EC of

the European
Parliament and of the Council of 30 June 2008 on the selec-
tion and authorisation of systems providing mobile satellite
services (MSS)
is void in accordance with the provisions
under Article 230 CE and 231 EC;

— Order that the costs of the present action be paid by the
defendants and any other orders that the Court may deem
appropriate.

Pleas in law and main arguments

By means of its application pursuant to Article 230 EC, the
applicant seeks the annulment of Decision No 626/2008/EC of
the European Parliament and of the Council of 30 June 2008
on the selection and authorisation of systems providing mobile
satellite services (‘MSS’) (1).

The applicant claims that
the contested decision does not
address the existence of, nor gives consideration to, any MSS
System's pre-existing rights to band-width on the 2 GHz spec-
trum, whether derived from the International Telecommunica-
tions Union (‘ITU’) or the European Conference of Postal and
Telecommunications Administration regimes. Moreover,
the
applicant submits that the contested decision has the effect of
depriving it of property rights accrued to it under international
law that permit the applicant to offer MSS worldwide without
unlawful interference. In fact, the applicant claims to be the sole
operator with a system,
‘ICO-P’, providing MSS services in the
2 GHz Band. According to the applicant, the contested decision
attempts to allocate frequencies in the 2 GHz Band without
affording ICO-P's rights appropriate recognition, thereby putting
EU Member States in contravention of their Treaty obligations
with respect to the relevant rules of the ITU.