CELEX: C2001/331/40
Language: en
Date: 2001-11-24 00:00:00
Title: Case T-210/01: Action brought on 12 September 2001 by the General Electric Company against the Commission of the European Communities

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).
 ---pagebreak--- 24.11.2001             EN                     Official Journal of the European Communities                                      C 331/25
The applicant is challenging the Commission’s decision declar-           European Communities on 14 September 2001 by Arnaldo
ing the notified concentration to be incompatible with the               Lucaccioni, resident in St-Leonard-on-Sea (United Kingdom),
common market and the EEA Agreement.                                     represented by Juan Ramon Iturriagagoitia, lawyer.
In support of its claim, the applicant submits that the decision
did not correctly apply the test laid down in Article 2                  The applicant claims that the Court should:
of Regulation (EEC) No 4064/89 for declaring a merger
incompatible with the common market. According to the
applicant the decision failed to address, the question of the            Primarily:
creation or strengthening of a dominant position and the
concept of a significant barrier to competition.
                                                                         —     annul the Commission’s decision of 16 November 2000,
The decision did not, according to the applicant, provide
sufficient evidence of the alleged practices of mixed bundling           —     award a total of EUR 125 000 as compensation for
of aircraft engines with avionics and non-avionics products.                   damage suffered,
Nor was the decision supported by an economic model
showing the negative effect of that practice on competition.
The decision did not provide evidence either of the incompati-           —     order the defendant to pay the costs.
bility with the common market of the alleged vertical inte-
gration through the applicants leasing companies for commer-
cial and corporate jets and through Honeywell’s supply of                Alternatively:
engine starters to engine manufacturers. Nor was the alleged
horizontal overlap between the two companies on the markets              —     acknowledge that Article 14 of the Provisions for the
for large regional jet engines, corporate jet engines and small                Interpretation of the Rules on Insurance Against the Risk
marine gas turbines supported by sufficient evidence.                          of Accident and of Occupational Disease is unlawful.
The applicant further points out that the commitments
proposed by the applicant to enter into were rejected by the
Commission without proper analysis.
                                                                         Pleas in law and main arguments
The applicant also states that the Commission now paints an
entirely different picture of the market from that contained in
a decision 18 months earlier concerning the same market and              The applicant in the present action, who was granted perma-
one of the same parties to the merger.                                   nent invalidity at a rate of 130 % by decision of 15 April 1994,
                                                                         objects to the Appointing Authority’s refusal to recognise an
                                                                         aggravation of his occupational illness liable to give rise to
The applicant submits, in addition, that its rights of defence
                                                                         permanent invalidity pursuant to Article 14 of the Provisions
were not respected, in that the Commission did not give access
                                                                         for the Interpretation of the Rules on Insurance Against the
to all relevant documents, or gave access to other documents
                                                                         Risk of Accident and of Occupational Disease (the Provisions).
without allowing a sufficient period of time in which to review
them. The applicant also claims that its right to be heard was
not respected at the start of the investigation.
                                                                         In support of his claims the applicant puts forward the
                                                                         following pleas:
                                                                         —     Invalidity of Article 14 of the Provisions, which stipulates
                                                                               that accumulated allowances may not exceed 100 %, in
Action brought on 14 September 2001 by Arnaldo                                 so far as the Staff Regulations Committee does not have
Lucaccioni against the Commission of the European                              sufficient powers unconditionally recognised in the Staff
                          Communities                                          Regulations or the Rules,
                        (Case T-212/01)
                                                                         —     Breach of the principles of sound administration, duty to
                                                                               have regard for the interests of officials, protection of
                        (2001/C 331/41)                                        legitimate expectations and non-discrimination,
                   (Language of the case: French)
                                                                         —     Misuse of powers in this case.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the