CELEX: C1997/199/84
Language: en
Date: 1997-06-28 00:00:00
Title: Action brought on 25 April 1997 by Kesko Oy against the Commission of the European Communities (Case T-134/97)

No C 199/36           EN                  Official Journal of the European Communities                                        28 . 6 . 97
Action brought on 25 April 1997 by Kesko Oy against the                     effective competition. The Commission therefore
          Commission of the European Communities                            contravened the principles of non-discrimination,
                       ( Case T-134/97)                                     proportionality and good administration. Moreover,
                                                                            by omitting to provide any reasons for that change in
                         ( 97/C 199/ 84 )                                   practice, the Commission infringed Article 190 of the
                                                                            EC Treaty.
                (Language of the case: English)
                                                                     3 . The Article 8 (4 ) Decision requires the pre-merger
An action against the Commission of the European                            situation to be restored and in so doing goes beyond
Communities was brought before the Court of First                           what is required to achieve the goal of restoring
Instance of the European Communities on 25 April 1997                       conditions of effective competition. In excluding a
by Kesko Oy, represented by Gerwin Van Gerven, of the                       priori solutions which fall short of establishing the
Brussels Bar, and Sarah Beeston, of the Law Society of                      status quo ante, the Commission exceeds its powers
England and Wales, with an address for service in                           under Article 8 ( 4 ) of the Merger Regulation and
Luxembourg at the Chambers of Loesch & Wolter, rue                          contravenes the principles of proportionality and good
                                                                            administration .
Goethe 11 , Luxembourg.
                                                                     (') Council Regulation ( EEC ) No 4064/89 of 21 December 1989
The applicant claims that the Court should:                                on the control of concentrations between undertakings ( OJ No
                                                                           L 395 , 30 . 12 . 1989, p. 1 ).
                                                                     ( 2 ) OJ No C 131 , 26 . 4 . 1997, p . 17.
— annul the Commission decision of 19 February 1997
     in Case IV/M.784 Kesko/Tuko,
— order the Commission to pay the costs of the
     applicant.
                                                                     Action brought on 29 April 1997 by Eugenio Branco Lda.
Pleas in law and main arguments adduced in support:                       against the Commission of the European Communities
                                                                                                  ( Case T- 142/97)
On 20 November 1996, the Commission declared ,
                                                                                                    ( 97/C 199/85 )
pursuant to Article 8 ( 3 ) of the Merger Regulation H , an
implemented concentration between the applicant and
Tuko Oy, an undertaking incorporated under Finnish law,                                (Language of the case: Portuguese)
to be incompatible with the common market and the
functioning of the EEA. Subsequently, on 19 February
1997, the Commission adopted a further decision setting              An action against the Commission of the European
out measures in order to restore effective competition               Communities was brought before the Court of First
pursuant to Article 8 (4 ) of the Merger Regulation.                 Instance of the European Communities on 29 April 1997
                                                                     by Eugenio Branco Lda, a limited liability trading
                                                                     company, whose registered office is at 9, Rua Rodrigo da
By application lodged at the Registry by the Court on                Fonseca, Lisbon, represented by Bolota Belchior, of the
31 January 1997 and allocated the case number T-22/                  Vila Nova de Gaia Bar, with an address for service in
97 (2 ), the applicant brought an action under Article 173           Luxembourg at the Chambers of Jacques Schroeder of
of the EC Treaty for annulment of the Article 8 ( 3 )                Faltz & Associes, 6, Rue Heine, Luxembourg.
Decision. By its present application, the applicant seeks
the annulment of the Article 8 (4 ) Decision .
                                                                     The applicant claims that the Court should:
The applicant makes the following submissions:
                                                                     — annul the decision of the Commission, notified to the
 1 . The Article 8 (4 ) Decision should be annulled because                 applicant by DAFSE by letter of 24 February 1997,
     it is conditional upon a valid Article 8 ( 3 ) Decision. In            approving the claim for final payment in the context
     so far as the Article 8 ( 3 ) Decision is annulled, as                 of a European Social Fund contribution, which
      requested by the applicant in its application of                      considered ineligible expenditure submitted by the
      31 January 1997, the Article 8 ( 4 ) Decision must                     applicant and claiming repayment of Esc 17 565 320 ,
      automatically be annulled.                                            Esc 423 507 of which it received by way of an
                                                                             advance granted by the European Social Fund, and of
                                                                             Esc 17 141 813 , which it received by way of an
 2. The procedure followed in the adoption of the                            advance on the contribution out of public funds made
     Article 8 (4 ) Decision was at variance with the                        by the Portuguese State, reducing the ESF contribution
      Commission's previous practice with regard to                          to Esc 30 672 242 ,
      implemented concentrations, in that it did not allow
      the applicant to propose, within a reasonable period
      of time, appropriate measures to restore conditions of          — order the Commission to pay the costs .