CELEX: C2003/101/84
Language: en
Date: 2003-04-26 00:00:00
Title: Case T-58/03: Action brought on 20 February 2003 by Acciaierie e Ferriere Leali Luigi S.p.A. (in liquidation) against the Commission of the European Communities

C 101/48                EN                       Official Journal of the European Union                                         26.4.2003
European Communities on 10 February 2003 by Bioelettrica                 The pleas in law and principal arguments are similar to those
S.p.A., represented by Ombretta Fabe Dal Negro, lawyer.                  in Case T-287/01.
                                                                         (1 ) OJ C 31 of 2.2.2002, p. 15.
The applicant claims that the Court should:
                                                                         (2 ) Not yet published.
—     declare that the European Commission has failed to
      perform Contract BM/1007/94 of 12 December 1994
      (thermie programme);
—     declare the contract terminated by the Commission;
—     in any event, order the European Commission to pay to              Action brought on 20 February 2003 by Acciaierie e
      the applicant compensation — to be decided in separate             Ferriere Leali Luigi S.p.A. (in liquidation) against the
      proceedings — by way of compensation of the damages                         Commission of the European Communities
      sustained by the applicant as a result of the failure of the
      project;
                                                                                                    (Case T-58/03)
—     in the alternative, declare in any event that Bioelettrica
      owes no debt to the European Community in respect of                                         (2003/C 101/84)
      the funding received to date or any interest on the same,
      and
                                                                                             (Language of the case: Italian)
—     order the Commission to pay the costs.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 20 February 2003 by Acciaierie e
                                                                         Ferriere Leali Luigi S.p.A. (in liquidation), represented by
                                                                         Giovanni Vezzoli, Gianluca Belotti and Elisabetta Stefania
The present action concerns the same project as that in which            Piromalli, lawyers.
the Commission’s decision to withdraw is challenged in Case
T-287/01 Biolettrica v Commission (1) and T-42/03 Lurgi AG
and Lurgi S.p.A. v Commission (2). The applicant relies upon             The applicant claims that the Court should:
the statements made by the Commission in the context of the
termie project, as follows:                                              —     annul the contested decision;
—     6.9.2001 the Commission stated that the contract was at            —     in the alternative, reduce the fine imposed to take account
      an end;                                                                  of the fact that conduct subsequent to its going into
                                                                               liquidation (25 November 1998/4 December 1998) can-
                                                                               not be imputed to Acciaierie e Ferriere Leali Luigi
—     20.11.2001 the contract was regarded as still being in                   S.p.A. (in liquidation) and to take account of wrongful
      effect;                                                                  application of the increase in respect of duration to the
                                                                               whole of the basic fine as well as the specific financial
—     1.3.2002 the Commission confirmed that the contract                      situation of Acciaierie e Ferriere Leali Luigi S.p.A. (in
      was still in effect;                                                     liquidation), and
—     26.11.2002 the Commission stated that the contract was             —     order the Commission to pay the costs.
      at an end, having been terminated not on 26.11.2002
      but on 6.9.2001.
                                                                         Pleas in law and main arguments
The applicant submits that the Court of First Instance has not
considered the merits of the Commission’s second revocation
of the contract, that being in issue in Case T-287/01, or the            The present action is brought against the same decision as that
lawfulness of the revocation of 6 September 2001, which was              challenged in Case T-27/03 S.P. v Commission. The pleas in
based on Article 8(2)(f) of the General Conditions, Annex II to          law and principal arguments are similar to those in that case.
the contract, whereas the termination of 26 November 2002                Of particular importance are pleas alleging infringement of the
is based on Article 8(2)(d) of the General Conditions.                   rights of the defence in the procedure conducted by the
 ---pagebreak--- 26.4.2003             EN                          Official Journal of the European Union                                          C 101/49
Commission and inequality of treatment in that the Com-                   Opodo, alleging infringements of Article 81 and 82 of the EC
mission recognised in the case of another undertaking involved            Treaty. In the contested Decision, the Commission rejects the
in the same procedure mitigating factors which it denied the              complaint of the applicant.
applicant.
                                                                          In support of their application, the applicants invoke a
                                                                          manifest error of assessment and an infringement of the
                                                                          Commission’s obligation to investigate complaints with due
                                                                          diligence, with respect to the risk of coordination under
                                                                          Article 81(1) EC Treaty.
Action brought on 19 February 2003 by TQ3 Travel
Solutions GmbH and TQ3 Travel Solutions EMEA GmbH
  against the Commission of the European Communities
                                                                          Opodo is a joint selling agency set up by competitors
                                                                          representing most of the airline sector and provides, according
                         (Case T-59/03)
                                                                          to the applicants, a significant opportunity for those airlines
                                                                          to align their prices. The applicants claim that the Commission
                        (2003/C 101/85)                                   made a manifest error of assessment in reaching its conclusion
                                                                          that the undertakings will ensure that Opodo is not used for
                                                                          the exchange of commercially sensitive information and that
                  (Language of the case: English)                         Opodo will not be used as a vehicle for the shareholders to
                                                                          coordinate their competitive behaviour. The applicants invoke
                                                                          furthermore an infringement of the obligation of the Com-
                                                                          mission to investigate complaints with due diligence, an
                                                                          infringement of the applicant’s right to receive a response to
An action against the Commission of the European Communi-                 its complaint, and a manifest error of assessment with respect
ties was brought before the Court of First Instance of the                to the distortion of competition in the distribution of airline
European Communities on 19 February 2003 by TQ3 Travel                    tickets under Article 81(1) EC Treaty.
Solutions GmbH, Bremen, Germany, and TQ3 Travel Solutions
EMEA GmbH, Bremen, Germany, represented by Dr Thomas
Jestaedt, Mr Christopher Thomas and Dr Thomas Loest,
Lawyers.
                                                                          According to the applicants, the Commission failed to address
                                                                          the specific concern in the complaint that the Opodo infringed
The applicant claims that the Court should:                               Article 81(1) EC Treaty because it was intended to and would
                                                                          have the effect of enabling the airlines to secure joint control
                                                                          of the distribution of airline tickets, forcing independent travel
—     annul the Commission decision of 9 December 2002                    agencies out of the market.
      rejecting the applicant’s complaint in Case COMP/
      A.38321/D2-TQ3 Travel Solutions GmbH/Opodo Lim-
      ited;
—     order the Commission to pay the applicants’ costs.                  Finally, the applicants invoke an infringement of the obligation
                                                                          of the Commission to investigate complaints with due dili-
                                                                          gence, an error of law and a manifest error of assessment with
                                                                          respect to discrimination under Article 82(2) EC Treaty.
Pleas in law and main arguments
The applicants are active in the travel agency business,                  According to the applicants, the Commission failed to investi-
especially for business passenger air transport services and              gate with due diligence the price comparisons provided in the
connected services.                                                       complaint showing apparent discrimination. The applicants
                                                                          claim the Commission made an error of law in taking the
                                                                          position that the denial of lower priced tickets might be
                                                                          justified by the fact that the applicants focus on business
On 3 November 2000, a joint venture agreement setting up                  travellers and made an error of assessment when rejecting the
Opodo Limited, an online travel portal created by nine of the             relevance of the price comparisons.
largest European airlines, was notified to the Commission.
Following the Notice published by the Commission setting out
the undertakings proposed by the notifying parties and the
intention of the Commission to clear the joint venture, one of
the applicants filed a formal complaint against the creation of