CELEX: C2001/331/39
Language: en
Date: 2001-11-24 00:00:00
Title: Case T-209/01: Action brought on 12 September 2001 by Honeywell International Inc. against the Commission of the European Communities

24.11.2001             EN                     Official Journal of the European Communities                                       C 331/23
Action brought on 10 September 2001 by Volkswagen                        Referring to the case-law of the Court of Justice, the applicant
AG against the Commission of the European Communi-                       submits that Volkswagen’s written and oral requests were
                                ties                                     unilateral measures and not agreements within the meaning of
                                                                         Article 81(1) EC. They were not incorporated in the dealership
                                                                         agreement and the Contracting Parties did not subsequently
                         (Case T-208/01)                                 make them part of the agreement.
                         (2001/C 331/38)
                                                                         Further, the applicant maintains that there is no appreciable
                                                                         effect on trade between the Member States. It has not been
                   (Language of the case: German)                        proved that increasing or decreasing the discount by a few
                                                                         percentage points would have led to a noticeable increase in
                                                                         parallel trade.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Finally, the applicant submits that the fine imposed on it is
European Communities on 10 September 2001 by Volkswag-                   unfounded. Even supposing that there were infringement of
en AG, Wolfsburg (Germany), represented by R. Bechtold,                  Article 81(1), the fine is excessively high.
lawyer.
The applicant claims that the Court should:
—     Annul the Commission’s decision of 29 June 2001 (Case
      COMP/F-2/36.693 — Volkswagen);
                                                                         Action brought on 12 September 2001 by Honeywell
                                                                         International Inc. against the Commission of the European
—     in the alternative, reduce the fine imposed by Article 2 of                                   Communities
      the Decision;
                                                                                                   (Case T-209/01)
—     order the Commission to pay the costs.
                                                                                                  (2001/C 331/39)
Pleas in law and main arguments                                                             (Language of the case: English)
At the time of the launch of the new ‘VW Passat’ onto
the German market, the Volkswagen marketing director for                 An action against the Commission of the European Communi-
Germany sent a circular urging German Volkswagen dealers                 ties was brought before the Court of First Instance of the
and garages not to sell the new models for less than the                 European Communities on 12 September 2001 by Honeywell
recommended retail price and to observe ‘strict price disci-             International Inc., represented by Paul Lasok QC and Frederic
pline’.                                                                  Depoortere of Skadden, Arps, Slate, Meagher & Flom LLP,
                                                                         Brussels (Belgium).
On the basis of a complaint made by a car buyer, the
Commission initiated a formal procedure, which led to the                The applicant claims that the Court should:
adoption of the contested Decision. In the Decision, the
Commission found that the applicant, by fixing the selling               —     join the present case with the action brought by General
price of the VW Passat on the basis of the abovementioned                      Electric Co. for annulment of the Commission’s decision
request, had infringed Article 81(1) EC. A fine of EUR                         of 3 July 2001,
30,96 million was imposed on the applicant.
                                                                         —     order such measures of inquiry (including the hearing as
                                                                               witnesses or, as the case may be, as experts of the persons
In support of its claims, the applicant argues that the conduct                identified in this application) as may appear necessary,
complained of and not disputed by it did not infringe
Article 81(1) EC. It admits that its employees contravened
German competition law in a way attributable to it. However,             —     annul the Commission’s decision of 3 July 2001,
the applicant submits that Article 81(1) does not contain a
prohibition on making recommendations. That provision                    —     take such other or further steps as justice may require,
prohibits only anticompetitive agreements, decisions and
concerted practices but not requests and mere recommen-                  —     order the Commission to pay its own and Honeywell’s
dations.                                                                       costs.
 ---pagebreak--- C 331/24               EN                      Official Journal of the European Communities                                      24.11.2001
Pleas in law and main arguments                                                 economic analysis, and does not provide any evidence or
                                                                                quantification of the alleged effects of bundling, cross-
                                                                                subsidisation or predation on Honeywell’s rivals.
                                                                          —     The decision also infringes the applicant’s rights of
The applicant in the present case is a diversified technology                   defence in that it relies on new theories of cross-
and manufacturing company incorporated under the laws of                        subsidisation and predation, which either were not men-
the State of Delaware (USA). It seeks annulment of the                          tioned or were not developed in the statement of
Commission’s decision of 3 July 2001 (C(2001)1746 final,                        objections in such a way as to allow the applicant to
adopted pursuant to Article 8(3) of Council Regulation (EEC)                    defend itself.
No 4064/89 of 21 December 1989 on the control of
concentrations between undertakings, as last amended by
Regulation (EC) No 1310/97 of 30 June 1997 (‘the Merger                   The applicant underlines the fact that the present case concerns
Regulation’).                                                             the same markets and one of the same parties as those involved
                                                                          in a merger which raised identical issues in the same industry
                                                                          and was approved by the Commission less than 20 months
                                                                          before the Commission adopted the contested decision.
It is pointed out in this regard that on 5 February 2001,
General Electric Company, a diversified industrial company
incorporated in the State of New York (USA), notified to the
Commission a proposed concentration pursuant to Article 4
of the Merger Regulation by which GE had agreed to acquire
the entire share capital of Honeywell.                                    Action brought on 12 September 2001 by the General
                                                                          Electric Company against the Commission of the Euro-
                                                                                                 pean Communities
In the contested decision, the Commission declared the notified                                   (Case T-210/01)
concentration to be incompatible with the common market
and with the EEA Agreement. According to that decision, the                                       (2001/C 331/40)
proposed merger would lead to the creation or strengthening
of a dominant position on several markets, as a result of
which effective competition in the common market would be                                    (Language of the case: English)
significantly impeded.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
In support of its claims, the applicant submits that:                     European Communities on 12 September 2001 by the General
                                                                          Electric Company, a company incorporated under the laws of
                                                                          the State of New York, represented by Nicholas Green QC,
                                                                          Cherie Booth QC, Jessica Simor, Kelyn Bacon, Simon Baxter
—     The decision does not reflect the facts and relies for its
                                                                          and Marleen Van Kerckhove of Clifford Chance, Brussels, and
      conclusions on manifest and serious factual errors. In
                                                                          Louis Vogel and Joseph Vogel of Vogel & Vogel, Paris.
      particular, there is no factual basis for the assertions in
      that decision that bundling is a common practice in
      the aerospace industry, that Honeywell has engaged in               The applicant claims that the Court should:
      extensive bundling in the past or that the proposed
      merger with GE would have enabled the merged entity to              —     annul Commission Decision C(2001)1746 dated 3 July
      foreclose or marginalise rivals by engaging in bundling.                  2001 in Case COMP/M.2220 — General Electric/Hone-
                                                                                ywell,
—     The decision is based on manifest errors in its assessment          —     order the Commission to pay the costs.
      of the facts as regards, inter alia, its conclusions that the
      merger in question would provide the incentive and the
      means to engage in bundling in respect of BFE (Bayer
                                                                          Pleas in law and main arguments
      Furnished Equipment) products as well as SFE Supplier
      Furnished Equipment) and SFE-option products, that
      customers in the aerospace industry will accept bundling,           The applicant in this case is a diversified industrial corporation
      and that bundling will marginalise Honeywell’s rivals and           incorporated in the State of New York (USA). On 5 February
      force them out of the market.                                       2001, the applicant notified to the Commission, pursuant to
                                                                          Article 4 of the Merger Regulation, a proposed concentration
                                                                          by which the applicant has agreed to acquire the entire
—     The decision is insufficiently reasoned in that it provides         share capital of Honeywell, an advanced technology and
      no evidence in support of its conclusions concerning the            manufacturing company incorporated in the State of Delaware
      existence and effects of bundling, is not based on any              (USA).