CELEX: C1997/131/43
Language: en
Date: 1997-04-26 00:00:00
Title: Action brought on 31 January 1997 by Kesko Oy against the Commission of the European Communities (Case T-22/97)

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
 ---pagebreak--- No C 131 /18            EN                   Official Journal of the European Communities                                  26 . 4 . 97
    vertically integrated, the Commission made a manifest               complaint it lodged, of the adoption and implementation,
    error in its assessment of the relevant facts and its               in France, of aid measures for French producers of liqueur
    application of the law.                                             wines, such measures having been taken by the
                                                                        Government without the duty to notify having been
    This error constitutes an infringement of Articles 2,               complied with.
    3 ( 3 ), 8 ( 3 ), 22 ( 3 ) and 22 (4 ) of Merger Regulation
    and Article 190 of the EC Treaty.                                   Those measures involve the allocation of subsidies in
                                                                        1994, 1995 , 1996 and 1997 of FF 24 million, FF 28
                                                                        million, FF 32 million and FF 37 million respectively.
                                                                        The applicant points out in particular that, following the
Action brought on 3 February 1997 by AEVP — Associa­                    complaint lodged by the AEVP, the Commission should,
gao das Empresas de Vinho do Porto against the                          within two months, or within a reasonable time, have
          Commission of the European Communities                        adopted one of two decisions: either to approve the
                                                                        measures in issue, in the event that it had been
                            Case T-23/97)
                                                                        immediately certain that such measures are compatible
                            ( 97/C 131/44 )                             with the common market, after giving the French
                                                                        authorities the opportunity to submit their comments and
              (Language of the case: Portuguese)                        possibly subsequently having discussed the matter with
                                                                        AEVP, if necessary in order to clarify completely the status
                                                                        of the measures in issue; or to initiate the review
An action against the Commission of the European                        procedure provided for in Article 93 ( 2 ) in the event that
Communities was brought before the Court of First                       it cannot, on the basis of a mere preliminary analysis,
Instance of the European Communities on 3 February                      consider the measures in question compatible with the
1997 by AEVP — Associagao das Empresas de Vinho do                      common market.
Porto, whose registered office is at 413 Rua Barao de For­
rester, 4400 Vila Nova de Gaia, represented by Carlos Bo­
telho Moniz and Ana Santos Reis, of the Bar of Portugal,                The Commission did neither the one nor the other and has
with an address for service in Luxembourg at the                        been analysing the situation at a preliminary level for
Chambers of Aloyse May, 31 Grand-Rue, Luxembourg.                       almost two years . The applicant insists that, whatever
                                                                        criterion is deemed applicable, the period for a
The applicant claims that the Court should:                             preliminary assessment expired a long time ago without
                                                                        the Commission having adopted a position in accordance
                                                                        with the Treaty.
— find and declare that the Commission of the European
     Communities, the defendant, failed, contrary to the
    provisions of Articles 92 and 93 and in breach of the               The fact that the Commission has not adopted a position
     principles of legality, care and impartiality, in its duty         at the preliminary stage impairs the rights of the
    to take a decision on whether to initiate the procedure             applicant, which is prevented from obtaining judicial
     provided for in Article 93 (2 ) as requested by the                protection under Community law in order to protect its
     applicant by way of complaint No 95/4342 SG(95 ) A/                legitimate interests .
     5925/2 with regard to the aid granted by the French
     Government to domestic liqueur wine producers,
                                                                        The applicant points out the fact that such action by the
— order the Commission to pay all the costs.                             Commission is necessary particularly since national courts
                                                                        do not have jurisdiction to decide whether the aid is
                                                                        compatible with the common market, since that power is
Pleas in law and main arguments adduced in support:                      conferred by the Treaty exclusively to the Commission.
The applicant brought an action for a declaration that the
 Commission, disregarding the provisions of Articles 92                  Thus, national courts must restrict themselves to ensuring
 and 93 of the EC Treaty, failed to fulfil its obligation to             the effectiveness of the prohibition until the Commission
 adopt an act defining its position on the complaint lodged              takes a final decision .
 with it by the applicant on 24 March 1995 , No 95/4342
 SG(95 ) A/5925 , denouncing a system of financial
 compensation set up by the Government of the French                     It is evident from this system that the Commission has the
 Republic for the benefit of French producers of liqueur                 obligation to take a decision as to the compatibility with
                                                                         the common market of aid measures which have not been
 wines, with the aim of nullifying the difference between
 the charge payable for that category of wine and natural                notified but of which it has meanwhile been apprised, in
 sweet wines in the context of the special consumption                   particular where it has been informed of their existence by
 duties .                                                                means of a complaint submitted by competitors of the
                                                                         beneficiaries of the aid granted.
 The applicant asserts in this regard that, in the instant
 case, the Commission was informed, by way of the