CELEX: C2002/068/33
Language: en
Date: 2002-03-16 00:00:00
Title: Case T-5/02: Action brought on 15 January 2002 by Tetra Laval B.V. against the Commission of the European Communities

16.3.2002               EN                     Official Journal of the European Communities                                         C 68/19
Action brought on 15 January 2002 by Tetra Laval B.V.                     —    any ‘leveraging’ deriving from the merger — assuming it
  against the Commission of the European Communities                           could be established — would in any event not lead to
                                                                               any market foreclosure of competitors;
                           (Case T-5/02)
                                                                          —    the Commission is wrong to be concerned about the
                                                                               possibility that Tetra Laval, as a result of the merger,
                          (2002/C 68/33)                                       would ‘strengthen its current dominant position in carton
                                                                               packaging by eliminating a source of significant competi-
                    (Language of the case: English)                            tive constraint’, as this ignores the presence of strong
                                                                               competitors in the PET equipment market and the
                                                                               acknowledged lack of dominance of Sidel, as well as the
                                                                               anticipated dynamics of the development of PET;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                —    the Commission failed to show that the merger could
European Communities on 15 January 2002 by Tetra Laval                         lead to any strengthening of a dominant position resulting
B.V., represented by Mr Alexandre Vandencasteele and                           from the merged entity’s ‘future dominant position in
Mr Denis Waelbroeck, of Liederkerke Siméon Wessing Hou-                        two closely neighbouring markets’;
thoff, and Mr Andreas Weitbrecht et Mr Sven Völcker of
Wilmer Cutler & Pickering, Brussels (Belgium).                            —    the Commission’s objections failed to consider alternative
                                                                               packaging materials such as high density polyethylene
                                                                               (HDPE) bottles, glass and cans; and
The applicant claims that the Court should:
                                                                          —    the Commission failed to demonstrate why the remedies
—     grant the applicant the benefit of an expedited procedure;               offered by the applicant (the divestiture of its stretch blow
                                                                               moulding — SBM — machines and PET preform business,
                                                                               keeping Sidel separate from the Tetra Pak companies for a
—     declare the present application admissible and well-                     period of ten years following the Commission’s clearance
      founded;                                                                 decision, and the granting of a licence of Sidel’s SBM
                                                                               business for sale to customers filling ‘sensitive’ products
—     annul the contested decision in its entirety;                            and for sales to converters) did not eliminate the concerns
                                                                               identified by it.
—     order the Commission to pay the costs of the procedure.
Pleas in law and main arguments
The applicant in the present case, an undertaking incorporated            Action brought on 22 January 2002 by adidas Inter-
under the laws of the Netherlands, challenges the Commission              national B.V., Coöperatieve Centrale Raiffeisen-Boeren-
decision which declared a concentration to be incompatible                leenbank B.A. (Rabobank Nederland), DSM Finance B.V.,
with the common market in the Tetra Laval/Sidel case (Case                DTG Finance B.V., Heineken N.V., ING Verzekeringen
No COMP/M.2416). This concentration aims to bring together                N.V., Koninklijke Ahold N.V., Landis Group International
two companies, one, the applicant, active primarily in carton             B.V., Unilever N.V. and Wolters Kluwer N.V. against the
packaging, and the other, Sidel, mainly active in PET (polyester)                 Commission of the European Communities
packaging equipment. According to the applicant, since neither
of the parties is active in the other’s market, the proposed
merger raises no horizontal concerns. Nor does the proposed                                        (Case T-9/02)
merger raise any vertical concerns. It therefore merely raises
potential conglomerate effects.
                                                                                                  (2002/C 68/34)
In support of its arguments, the applicant submits that:                                    (Language of the case: Dutch)
—     the Commission failed to give full access to the file;
—     it is not established that Tetra Laval will, as a result of the     An action against the Commission of the European Communi-
      merger, be able to ‘leverage’ its position from the carton          ties was brought before the Court of First Instance of the
      market into the PET equipment market;                               European Communities on 22 January 2002 by adidas Inter-