Case T-405/08: Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission
Date: 2008-09-18
Institutions: Court of First Instance
Subjects: European Commission, action for annulment (EU), competition law, consumption, economic concentration, merger control

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;