CELEX: C2004/007/67
Language: en
Date: 2004-01-10 00:00:00
Title: Case T-350/03: Action brought on 13 October 2003 by Wirtschaftskammer Kärnten and best connect Ampere Strompool GmbH against the Commission of the European Communities

C 7/36                EN                          Official Journal of the European Union                                            10.1.2004
Subsequently, the applicant submitted to the DAFSE an                     The applicant claims that the Court should:
application for payment of the balance of PTE 991 009 by the
EFS and of the balance of PTE 810 226 by the Portuguese                   —     annul the Commission’s decision of 9 July 2003 concern-
State. The DAFSE certified that request, which the Commission                   ing the restructuring aid which France plans to put into
approved by document No 4242 of 13 March 1989, although                         effect in favour of the Société Nationale Maritime Corse-
it considered the sum of 1 192 162 to be ineligible. On                         Méditerranée;
17 February 1998 the Commission decided, however, to
suspend the contribution.                                                 —     order the defendant to pay all the costs.
The Portuguese judicial authorities decided to discontinue the
legal actions pending against the applicant, thereby eliminating
                                                                          Pleas in law and main arguments
in the applicant’s view the presumption that it had acted
irregularly. Nevertheless, the Commission adopted the decision
at issue in these proceedings.                                            By the contested decision, the Commission decided that the
                                                                          restructuring aid which France was planning to put into effect
                                                                          in favour of the Société Nationale Maritime Corse-Méditerranée
The contested decision, in the applicant’s view, infringes                was, under certain conditions, compatible with the common
Regulation (EEC) No 2950/83 and Council Decision 83/516/                  market. The applicant challenges that decision, asserting that it
EEC since the applicant complied strictly with the conditions             has a direct and individual interest in obtaining its annulment,
laid down for approval of the EFS contribution, thereby                   having regard to its active participation in the formal investi-
acquiring ‘subjective rights attaching specifically to it’.               gation procedure in respect of the aid and its competitive
                                                                          position in the reference market.
The decision also breaches the principle of the protection of
legitimate expectations in so far as the Commission’s approval            In support of its action it relies, first, on alleged failure to state
decision vested in the applicant an entitlement to the contri-            the reasons on which the contested decision is based and,
butions and gave rise to an expectation on its part that it               secondly, on alleged manifest errors of fact and assessment.
would receive them if it carried out the action on the agreed
basis and also because the measure contested herein could
have been put into effect as early as 1989.
Finally, the contested decision constitutes a serious breach of
the principle of proportionality since the applicant incurred
expenses on the assumption that the Commission would fulfil
                                                                          Action brought on 13 October 2003 by Wirtschafts-
its commitments.
                                                                          kammer Kärnten and best connect Ampere Strompool
                                                                          GmbH against the Commission of the European Com-
                                                                                                       munities
                                                                                                  (Case T-350/03)
                                                                                                    (2004/C 7/67)
Action brought on 13 October 2003 by Corsica Ferries
France against the Commission of the European Com-
                             munities                                                        (Language of the case: German)
                        (Case T-349/03)
                                                                          An action against the Commission of the European Communi-
                         (2004/C 7/66)                                    ties was brought before the Court of First Instance of the
                                                                          European Communities on 13 October 2003 by Wirtschafts-
                                                                          kammer Kärnten and best connect Ampere Strompool GmbH,
                   (Language of the case: French)                         Klagenfurt (Austria), represented by M. Angerer, lawyer.
                                                                          The applicants claim that the Court should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                —     annul Commission Decision COMP/M.2947 — Verbund/
European Communities on 13 October 2003 by Corsica                              EnergieAllianz of 11 June 2003 on the compatibility of a
Ferries France, established in Bastia (France), represented by                  concentration with the common market and the Agree-
S. Rodrigues and C. Scapel, lawyers, with an address for service                ment on the European Economic Area (EEA Agreement)
in Luxembourg.                                                                  and order the defendant to pay the costs.
 ---pagebreak--- 10.1.2004               EN                          Official Journal of the European Union                                             C 7/37
Pleas in law and main arguments                                             Electric S.A., established in Rueil-Malmaison (France), rep-
                                                                            resented by M. Pittie and A. Winckler, lawyers.
The contested decision by the Commission approves the
concentration of several Austrian undertakings with the under-              The applicant claims that the Court should:
takings E&S GmbH and Verbund Austrian Power Trading AG,
subject to conditions.                                                      —     order the Community to pay it the sum of
                                                                                  EUR 1 663 734 716,76;
The applicants claim that E&S GmbH and Verbund Austrian
Power Trading AG are not a full-function joint venture for the              —     such sum to be reduced, if appropriate, by an amount
purpose of Article 3 of the Merger Regulation (1) in conjunction                  not exceeding EUR 1 663 595,74, depending on the
with the Notice on the concept of full-function joint ven-                        outcome of the applications for taxation of the costs in
tures (2). In particular, there is a lack of joint control, sufficient            Cases T-310/01, T-77/02 and T-77/02 R;
independent resources, independent staff management and the
power to procure a substantial proportion of electrical current             —     such sum to be increased by interest accrued since
from outside the parent company’s sphere of influence and to                      4 December 2002 until full payment thereof, at the rate
be allowed to sell it freely on the market. Concerted practices                   of 4 % per year;
directly related to that merger also invalidate the proposal
under Article 2(4) of the Regulation in conjunction with                    —     such sum to be increased by the amount of tax for which
Article 81(1) and (2) EC. The Commission should have come                         Schneider will be liable on its receipt;
to that conclusion when it examined the proposal.
                                                                            —     order the Commission to pay all the costs.
The applicants also claim that, in addition to that merger, a
likely ‘group effect’ can be expected to result in further
concerted practices, which would also be invalid under
Article 81(2) EC.                                                           Pleas in law and main arguments
Moreover, the applicants maintain that the planned project                  The applicant company in this case seeks to obtain compen-
would greatly restrict free competition in the Austrian elec-               sation for the loss which it suffered as a result of the
tricity market and further seal off the Austrian electricity                Commission’s conduct in dealing with Case COMP/M.2283 —
market from that of the European Community, since it would                  Schneider Electric/Legrand, which gave rise to the judgments
further raise the threshold for access to the Austrian electricity          in Case T-310/01 (1) and Case T-77/02 (2).
market. The conditions laid down by the Commission will not
alter that result.
                                                                            It claims in that regard that the Commission, in the course of
                                                                            the proceeding which led to the prohibition decision of
(1) Council Regulation (EEC) No 4064/89 on the control of concen-           10 October 2001, made numerous errors most of which were
    trations between undertakings (OJ 1990 L 257, p. 13).                   found established by the Court of First Instance. It also claims
(2) OJ 1998 C 66, p. 1.                                                     that, during the proceeding after that prohibition decision, the
                                                                            Commission made errors, not yet established by the Court,
                                                                            which have increased the damage suffered. In its view, such
                                                                            conduct by the Commission should be regarded as manifestly
                                                                            and seriously exceeding the limits of its discretion to assess the
                                                                            compatibility of a concentration (with the common market).
Action brought on 10 October 2003 by Schneider Electric                     It is a question, in particular, of a lack of fairness by the
S.A. against the Commission of the European Communi-                        Commission in the proceeding which led to the decision of
                                  ties                                      10 October 2001, of infringement of the applicant’s defence
                                                                            rights, of orchestration of the relations between the parties to
                          (Case T-351/03)                                   the concentration, of infringement of the right to be heard by
                                                                            an impartial authority, of its intransigence concerning the
                                                                            detailed rules of the separation imposed on 30 January 2002,
                            (2004/C 7/68)                                   of serious and manifest failure to take into account its exclusive
                                                                            jurisdiction and of the erroneous analysis of the corrective
                    (Language of the case: French)                          measures proposed in November 2002.
                                                                            (1) Schneider v Commission [2002] ECR II-4071.
                                                                            (2) Schneider v Commission [2002] ECR II-4201.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 October 2003 by Schneider