CELEX: C1996/064/31
Language: en
Date: 1996-03-02 00:00:00
Title: Action brought on 4 December 1995 by Endemol Entertainment Holding BV, Veronica Omroep Organisatie, Compagnie Luxembourgeoise de Télédiffusion SA, NV Verenigd Bezit VNU and RTL4 SA against the Commission of the European Communities (Case T-221/95)

No C 64/14           f EN                  Official Journal of the European Communities                                     2 . 3 . 96
Finally, the applicant pleads infringement of Article 190 of          under Article 22 ( 3 ) of Regulation ( EEC ) No 4064/89
the Treaty on the ground that the statement of reasons is             directly define and restrict the scope of the Commission's
inadequate .                                                          competence to investigate a concentration.
The applicant also relies on Article 175 of the Treaty against        As the Commission was, in the present case, requested by
the conduct of the Commission. The applicant explains in              the Netherlands Government to examine the concentration
this regard that the Commission has not defined its position          only in light of the TV advertising market, the Commission
as requested by the applicant, has not adopted any decision           could not expand the scope of the inquiry which it was
entailing the formal conclusion of the anti-dumping                   requested to carry out, so as to cover other markets .
proceeding and it has not taken within a reasonable period
any of the steps required by the basic Regulation in the event        Secondly, the Decision must be annulled because the
that a proposal to conclude anti-dumping proceedings                  Commission has infringed the applicants' rights of defence .
without imposing measures is rejected by the Council .                The Commission has seriously failed in its obligation to
                                                                      grant the applicants access to the file and to documents
                                                                      relevant for the conduct of their defence . This infringement
                                                                      of the rights of defence concerns not only the way in which
                                                                      the Commission granted 'access to the file ' but also the
                                                                      Commission 's refusal of access to essential documents
                                                                      obtained by the Commission after the date of the 'access to
Action brought on 4 December 1995 by Endemol                          the file '. There are serious indications that the Commission
Entertainment Holding BV, Veronica Omroep Organisatie,                thus withheld from the applicants documents which
Compagnie Luxembourgeoise de Télédiffusion SA, NV                     supported their view and arguments .
Verenigd Bezit VNU and RTL4 SA against the Commission
                 of the European Communities                          Thirdly, the Decision must be annulled because the
                        ( Case T-221 /95 )                            Commission has infringed essential procedural rules and the
                           ( 96/C 64/31 )                             applicants' rights of defence by not submitting a report of
                                                                      the hearing to the Advisory Committee, the Commissioners
                                                                      and the applicants themselves .
                {Language of the case: English)
                                                                      Fourthly, the Decision must be annulled because the
An action against the Commission of the European                      Commission was wrong in concluding that Endemol 's
Communities was brought before the Court of First                     participation in HMG would strengthen an alleged
Instance of the European Communities on 4 December                    dominant position of Endemol in an alleged market of
1995 by Endemol Entertainment Holding BV, and Veronic                 independent Dutch TV production.
Omroep Organisatie, represented by Onno W. Brouwer and
Peter Wytinck, Stibbe Simont Monahan Duhot, and by                    Fifthly, HMG does not have a dominant position on the TV
Compagnie Luxembourgoise de Télédiffusion SA, NV                      broadcasting and TV advertising market . The applicants
Verenigd Bezit VNU and RLT4 SA, represented by Mark                   are, in particular, unable to agree with the Commission's
B. W. Biesheuvel and T. Martijn Snoep, De Brauw                       analysis of the position of the public broadcasters in the
Blackstone Westbroek, all with an address for service in              Netherlands . The Commission has limited itself to taking
Luxembourg at the Chambers of M. Loesch, Rue Goethe                   over and accepting on face value arguments and facts which
11 .                                                                  the Dutch public broadcasters have presented to the
                                                                      Commission, in their capacity as complainants ( SBS, a direct
                                                                      competitor of HMG, and the Dutch public broadcasters
The applicant claims that the Court should :                          have done their utmost to oppose and frustrate the creation
                                                                      of HMG).
— annul the Commission's Decision of 20 September 1995
     relating to a proceeding pursuant to Council Regulation
     ( EEC )    No 4064/89          ( IV/M.553-RTL/Veronica/-         Sixthly, the Decision must be annulled because the
     Endemol), and                                                    Commission has incorrectly held that Endemol has a
                                                                      dominant position. The Commission has defined the
                                                                      production market incorrectly . Furthermore, even in this
— order the Commission to pay the applicants' costs                   narrowly defined market, Endemol does not have a
     pursuant to Article 87 of the Rules of Procedure of the          dominant position . The Commission has incorrectly
     Court of First Instance .                                        calculated Endemol's market share and relied on other
                                                                      incorrect facts in assessing Endemol's position .
Pleas in law and main arguments adduced in support:
                                                                      Seventhly, the concentration will in any event not lead to a
Firstly, the applicants claim that the Decision must be               significant change in effective competition on the
annulled on grounds of lack of competence, misuse of power            production market.
and infringement of Article 22 ( 3 ) of Regulation 4064/89
and Article 3b of the EC Treaty. The applicants submit that
the text and the content of a request from a Member State