Case T-58/09: Action brought on 11 February 2009 — Schemaventotto v Commission
Date: 2009-02-11
Institutions: Court of First Instance
Subjects: European Commission, Italy, action for annulment (EU), concentration of the population, motorway, transport infrastructure

C 82/34

EN

Official Journal of the European Union

4.4.2009

The applicant further submits that the contested decision is
unlawful
in that it is an attempt by the EMEA to misuse its
powers pursuant to Articles 11(1)(b) and 25 of Regulation (EC)
No 1901/2006 in order to attain the aim which is not contem-
plated by those provisions, namely, the obligation to propose a
paediatric investigation plan for
indications which are not
covered by the concomitant Community market authorisation
application.

(1) Regulation (EC) No 726/2004 of the European Parliament and of the
Council of 31 March 2004 laying down Community procedures for
the authorisation and supervision of medicinal products for human
and veterinary use and establishing a European Medicines Agency
(OJ 2004 L 136, p. 1).

(2) Regulation (EC) No 1901/2006 of the European Parliament and of
the Council of 12 December 2006 on medicinal products for paedia-
tric use and amending Regulation (EEC) No 1768/92, Directive
(EC)
2001/83/EC
2001/20/EC, Directive
No 726/2004 (OJ 2006 L 378, p. 1).

Regulation

and

Action brought on 11 February 2009 — Schemaventotto v
Commission

(Case T-58/09)

(2009/C 82/59)

Language of the case: Italian

Parties

Applicant: Schemaventotto SpA (Milan, Italy) (represented by: M.
Siragusa, G. Scassellati Sforzolini, G.C. Rizza, M. Piergiovanni,
lawyers)

Defendant: Commission of the European Communities

Forms of order sought

— Annul the decision(s) contained in the letter of 13 August
2008, File No C(2008) 4494, from Commissioner Kroes, for
and on behalf of the European Commission, to the Italian
authorities, and relating to a proceeding under Article 21 of
[Regulation No 139/2004] on the control of concentrations
between undertakings (Case COMP/M.4388 — Abertis v
Autostrade); and

— Order the Commission to pay the costs incurred by the

applicant in the present proceedings.

Pleas in law and main arguments

The present action contests the decision contained in Commis-
sioner Kroes' letter of 13 August 2008, by which — according
to the applicant — the Commission notified the Italian authori-
ties of its intention not to pursue Case COMP/M.4388 Abertis v
Autostrade under Article 21 of Council Regulation (EC)

Indeed,

(‘the Regulation’).

No 139/2004 of 20 January 2004 on the control of concentra-
tions between undertakings
the
Commission approves the regulatory measures relating to the
authorisation procedures for the ‘transfer’ of motorway conces-
sions (Ministerial Directive of 2007 and Decree of 2008).
However,
the Commission
reserves its position as to whether the Italian regulatory frame-
work relating to the authorisation procedure for the transfer of
motorway concessions is compatible with the rules governing
the internal market.

in the above-mentioned letter,

In support of its claims, the applicant alleges infringement of
Article 21 of the regulation on concentrations, on the following
grounds:

the Commission's powers of

— The Commission may in no circumstances refer to amend-
ments made to the relevant regulatory framework after
31 January 2007, the date of the preliminary assessment.
Since
assessment under
Article 21(4) of the Regulation are closely linked to the
context of the assessment of a specific concentration with a
Community dimension, with which the national measures at
issue are concerned, subsequent amendments to the regula-
tions could not have any effects on the earlier conduct of
the Italian authorities, which led the parties to abandon the
transaction in December 2006, three months after it was
authorised under Article 6(1)(b) of the Regulation.

— The applicant alleges that the Commission acted ultra vires or
misused its powers, in so far as the legal basis chosen for
the contents of the specific Decision ‘not to pursue’ the
Italian measures at issue is inadequate. It is submitted in that
connection that, by deciding that the amendments which
had meanwhile been made to the regulatory framework
would ensure that there would be no grounds in future for
the misgivings expressed in its preliminary assessment of
31 January 2007,
the Commission has adopted under
Article 21 of the Regulation a type of decision which that
provision does not envisage. In fact, the Commission has
used the powers conferred upon it under Article 21 to
declare compatible with Community law certain measures of
general application adopted by a Member State, which have
nothing to do with the specific concentration which Italy's
adoption of the national measures at issue was intended to
block.

— By considering that

the Italian regulatory framework, as
amended, has been made compatible with Community law,
the Commission has failed to take into account the fresh
uncertainties which have arisen in the Italian legal system as
a result of those national measures, which have certainly not
helped to establish a favourable environment for any future
concentrations concerning the Italian market in motorway
concessions.
the regulations adopted by the
Italian Administration in 2007 and 2008 must in any event
also be said to be contrary to Article 21 [of the Regulation]
in so far as they impose more extensive obligations for a
‘transfer’ of a motorway concession than those to which the
interested parties would otherwise be subject.

In addition,