CELEX: C1997/131/42
Language: en
Date: 1997-04-26 00:00:00
Title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 17 December 1996 in Case T-164/96 R: Moccia Irme SpA v. Commission of the European Communities (ECSC - State aid - Single decision refusing to authorize the grant of State aid to a steel undertaking - Suspension of operation of a measure - Necessary interim measures - Interest in obtaining the interim measures requested - Rejection of the application)

26 . 4 . 97            EN                   Official Journal of the European Communities                                 No C 131 / 17
               ORDER OF THE PRESIDENT                                  England and Wales, with an address for service in
           OF THE COURT OF FIRST INSTANCE                              Luxembourg at the Chambers Loesch & Wolter, 11 , rue
                      of 17 December 1996                              Goethe, Luxembourg.
in Case T-164/96 R: Moccia Irme SpA v. Commission of                   The applicant claims that the Court should:
                   the European Communities
(ECSC — State aid — Single decision refusing to authorize              — annul the Commission decision of 20 November 1996
the grant of State aid to a steel undertaking — Suspension                   in Kesko/Tuko (IV/M.784 ),
of operation of a measure — Necessary interim measures
— Interest in obtaining the interim measures requested —
                  Rejection of the application)                        — order the Commission to pay the costs of the
                                                                             applicant.
                          ( 97/C 131 /42 )
                                                                       Pleas in law and main arguments adduced in support:
                 (Language of the case: Italian)
                                                                       The applicant is a leading wholesale company in Finland.
                                                                       It distributes both daily consumer goods ( food, beverages,
In Case T-164/96 R: Moccia Irme SpA, established in                    tobacco products and household consumables forming
Naples ( Italy ), represented by Emilio Cappelli, Paolo De             part of a basket of goods which consumers expect to find
Caterini and Andrea Bandini, of the Rome Bar, with an                  in supermarkets ) and specialty goods ( shoes, clothes,
address for service in Luxembourg at the Chambers of                   sports articles, home electronics and agricultural and
Charles Turk, 13b Avenue Guillaume, against Commission                 builders' supplies ). On 27 May 1996 Kesko acquired
of the European Communities ( Agents : Paul E Nemitz,                  exclusive control of Tuko Oy, a company active as a
Laura Pignataro and Massimo Moretto ) — application                    wholesaler and retailer in the field of daily consumer
brought under Article 39 of the ECSC Treaty requesting                 goods and specialty goods. On 26 June 1996 the
the President of the Court of First Instance to make an                Commission received from the Finnish Office of Free
order suspending the operation of the Commission                       Competition ( OFC ) a request based on Article 22 ( 3 ) of
Decision C(96)2385 final of 30 July 1996, together with                Council Regulation ( EEC ) No 4064/89 (the Merger
previous acts, and to decide that the Commission is to                 Regulation). The Commission initiated proceedings in
request the Italian authorities to suspend until the                   respect of the transaction and, on 20 November 1996 ,
substance of the case is dealt with payment of the aid for             adopted the contested decision, declaring the
closure referred to in Decree Law No 396 of 20 June                    concentration between Kesko Oy and Tuko Oy to be
1994, now Law No 481 of 3 August 1994, and, in the                     incompatible with the common market and the
alternative, that the Commission should reopen the inter               functioning of the EEA Agreement.
partes procedure to investigate the aid to the applicant —
the President of the Court of First Instance made an order
on 17 December 1996 , the operative part of which is as                The applicant seeks the annulment of this decision on the
follows :                                                              following grounds:
                                                                       ( a ) The Commission failed to verify adequately the basis
1 . The application for interim measures is dismissed.                       of its competence despite the fact that its competence
                                                                             was challenged by the applicant on the ground that
                                                                             OFC was not empowered to make a request under
2.   The costs are reserved.                                                 Article 22 ( 3 ) of the Merger Regulation . The
                                                                             Commission also failed to state the reasons for which
                                                                             it assumed competence and rejected the applicant's
                                                                             arguments .
                                                                             These errors constitute infringements of Article 22 ( 3 )
                                                                             of the Merger Regulation, Article 190 of the EC
Action brought on 31 January 1997 by Kesko Oy against
                                                                             Treaty and the principle of good administration .
        the Commission of the European Communities
                         ( Case T-22/97)
                                                                       ( b ) In finding that the concentration in question may have
                           ( 97/C 131 /43 )                                  an effect upon trade between Member States, the
                                                                             Commission made a manifest error in its assessment of
                                                                             the relevant facts and its application of the law.
                (Language of the case: English)
                                                                             This error constitutes an infringement of Article 22 ( 3 )
                                                                             of the Merger Regulation and Article 190 of the EC
An action against the Commission of the European
Communities was brought before the Court of First                            Treaty.
Instance of the European Communities on 31 January
1997 by Kesko Oy, represented by Gerwin Van Gerven, of                 (c ) In finding that the applicant and independent K­
the Brussels Bar, and Sarah Beeston, of the Law Society of                   retailers ( and T-retailers ) should be regarded as