CELEX: C2000/079/69
Language: en
Date: 2000-03-18 00:00:00
Title: Case T-342/99: Action brought on 2 December 1999 by Airtours PLC against the Commission of the European Communities

18.3.2000             EN                     Official Journal of the European Communities                                      C 79/31
Action brought on 1 December 1999 by Arne Mathisen                          in essence transfer prices between related companies.
       AS against the Council of the European Union                         Moreover, it acted in good faith and did not intend to
                                                                            mislead the Commission.
                         (Case T-340/99)
                                                                        — The principle of proportionality has been breached. The
                                                                            regulation was not absolutely necessary to protect the
                          (2000/C 79/68)                                    Community market since the applicant discontinued the
                                                                            contested business practice.
                  (Language of the case: English)                       — It was entitled to compensation payments under
                                                                            Article 288 EC since the regulation was unlawful and it
An action against the Council of the European Union was                     incurred economic loss by being commercially excluded
brought before the Court of First Instance of the European                  from taking part in the salmon-export trade with the EC.
Communities on 1 December 1999 by Arne Mathisen AS,
represented by Sigurd Knudtzon, with an address for service
in Luxembourg at the Chambers of Bonn, Schmitt & Steichen,
7 Val Ste-Croix.
The applicant claims that the Court should:
— annul, in so far as it relates to the applicant, Council
    Regulation (EC) No 1895/1999 of 27 August 1999                      Action brought on 2 December 1999 by Airtours PLC
    amending Regulation (EC) No 722/1999 imposing defini-                 against the Commission of the European Communities
    tive anti-dumping and countervailing duties on imports of
    farmed Atlantic salmon originating in Norway;
                                                                                                (Case T-342/99)
— award the applicant compensation to be paid by the
    Council on the basis of the commercial losses incurred as                                    (2000/C 79/69)
    a consequence of the said Council regulation;
— interest at a rate of 12 % annually on such amounts as are                               (Language of the case: English)
    found to be due;
— order the Council to pay the costs of this proceeding.                An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 2 December 1999 by Airtours PLC,
Pleas in law and main arguments                                         represented by John Swift, QC, Rupert Anderson, Malcolm
                                                                        Nicholson, Jacqueline Holland and Andrea Gomes da Silva,
                                                                        with an address for service in Luxembourg at the Chambers of
The applicant is a Norwegian fish trading company, that, with           Elvinger Hoss & Prussen, 2 Place Winston Churchill, L-2014.
other Norwegian exporters, signed an undertaking not to sell
Norwegian salmon in the Community below a specified
minimum price and to report the quarterly sale of salmon to             The applicant claims that the Court should:
the Commission. Moreover, it undertook not to circumvent the
undertaking by compensatory arrangements with customers in              — declare the Commission Decision of 22 September 1999
the Community or by misleading declarations or reports.                     relating to the notification of a concentration pursuant to
Following allegations that the applicant had sent hypothetical              Council Regulation (EEC) No 4064/89 in Case
sales reports, and misled the Commission as to its true function            No. IV/M.1524 — Airtours/First Choice void and annul it
and its capability of respecting the undertaking, the Council               in its entirety;
adopted the contested regulation.
                                                                        — order the Commission to pay Airtours’ costs.
In support of its case, the applicant puts forward the following
pleas in law:
                                                                        Pleas in law and main arguments
— Its business practice was not in breach of the undertaking
    since the undertaking did not cover triangular trading
    arrangements before it was amended in December 1998.                The contested decision prohibits the proposed merger between
                                                                        Airtours and First Choice Holidays PLC on the ground that the
— The business practice did not constitute a circumvention              concentration would lead to a situation of collective domi-
    of the undertaking. The applicant rejects the assertion that        nance in the UK short-haul foreign package holiday market.
    the prices and money-flows between its trading partners,            The collectively dominant firms would be the merged Air-
    that formed the basis of the applicant’s reports to the             tours/First Choice entity, and two other tour operators,
    Commission, were only of notional character and were                Thomson Travel Group PLC and Thomas Cook Group Limited.
 ---pagebreak--- C 79/32                 EN                  Official Journal of the European Communities                                     18.3.2000
The applicant claims that the Court should annul the contested         (c) Defects of reasoning
decision on the following grounds:
                                                                           The Commission has infringed Article 253 EC by giving in
                                                                           the Decision inadequate reasons in two principal areas:
(a) Misapplication of Council Regulation (EEC) No 4064/89 (the
    ‘ECMR’), in particular in respect of the finding of collective         — There are certain important elements of argument and
    dominance                                                                   evidence adduced by the applicant which have been
                                                                                ignored by the Commission in its Decision. By ignoring
    It is common ground between the applicant and the                           them, the Commission fails to give adequate reasons
    Commission that the ECMR prohibits the creation or                          for its Decision.
    strengthening of a collective dominant position within
    a relevant product and geographic market within the                    — In certain key areas of the Decision, the reasoning of
    Community. The relevant test is whether as a result of the                  the Commission is logically defective.
    creation or strengthening of a dominant position effective
    competition would be significantly impeded.                        (d) Breach of the principle of legal certainty
                                                                           The Commission has infringed the principle of legal
    In the application of that test the overriding principle is to         certainly in that it has departed from its own previous
    establish, using a prospective analysis of the relevant                decisional case-law and the case-law of the European Court
    market, whether effective competition would be signifi-                of Justice and the Court of First Instance, particularly in its
    cantly impeded by the undertakings involved in the                     approach in establishing and applying a test for collective
    concentration and one or more other undertakings which                 dominance which rests on ‘incentives’ and ‘rational’
    together, in particular because of factors giving rise to a            actions, but without the need for tacit collusion.
    connection between them, are able to adopt a common
    policy on the market and act to a considerable extent
    independently of their competitors, their customers and
    ultimately of consumers.
    The ability to adopt a common policy involves tacit
    collusion between the undertakings concerned. Tacit col-
    lusion means some form of coordination to identify,                Action brought on 1 December 1999 by Hans-Werner
    achieve and sustain such a common policy. Coordination             Schmidt against the Commission of the European Com-
    itself involves what is known as a punishment mechanism                                          munities
    to deter any deviation from the common policy.
                                                                                                (Case T-343/99)
    In carrying out its prospective analysis of the conduct
    of the three alleged oligopolists the Commission has                                         (2000/C 79/70)
    misapplied the ECMR in the following ways:
                                                                                          (Language of the case: French)
    — It has not based its case on tacit collusion; it has
         replaced that essential and stringent requirement with
                                                                       An action against the Commission of the European Communi-
         a lesser test founded on ‘unilateral’ effects, consisting
                                                                       ties was brought before the Court of First Instance of the
         of what are described as incentives and rational
                                                                       European Communities on 1 December 1999 by Hans-Werner
         behaviour to achieve, in the present case, a reduction
                                                                       Schmidt, residing at Konz (Federal Republic of Germany),
         in capacity and prices above competitive levels. That
                                                                       represented by Georges Vandersanden and Laure Levi, of the
         falls short of the necessary test which requires the
                                                                       Brussels Bar, with an address for service in Luxembourg at the
         Commission to establish more, namely the coordi-
                                                                       offices of the Société de la Gestion Fiduciaire, 2-4 Rue Beck.
         nation and the common policy referred above.
                                                                       The applicant claims that the Court should:
    — Tacit collusion, just as active collusion, requires a
         punishment mechanism to be effective. The Com-                — annul the implicit decision rejecting the application made
         mission wrongly claims that this essential requirement            by the applicant on 5 October 1998 by which he sought
         is not necessary.                                                 (i) the confirmation of the appointing authority that it
                                                                           would close the disciplinary proceedings brought against
(b) Manifest errors of appreciation                                        him by adopting the decision referred to in the third
                                                                           paragraph of Article 7 of Annex IX to the Staff Regulations
                                                                           of officials of the EC on the basis of the reasoned opinion
    The Commission has committed manifest errors of                        of the Disciplinary Board dated 16 July 1997, (ii) an award
    appreciation of the facts relating to the market and the               of damages provisionally fixed, on an equitable basis, in
    conduct of undertakings within this market, resulting in a             the sum of LFR 500 000 and (iii) the immediate and
    failure to comply with the requisite legal standard and thus           definitive cessation of any investigation carried out by the
    in an error of law.                                                    appointing authority without the applicant’s knowledge;