CELEX: C2002/156/58
Language: en
Date: 2002-06-29 00:00:00
Title: Case T-99/02: Action brought on 5 April 2002 by Ineos NV against the Commission of the European Communities

C 156/30                EN                     Official Journal of the European Communities                                     29.6.2002
Grounds of claim:              Violation of Article 8(5) of               According to the applicant, the Commission made manifest
                               Council Regulation 40/94 (1).              errors of assessment and errors in law in concluding that the
                               According to the applicant, the            commitments are sufficient to take away the said competitive
                               trade mark is detrimental to the           concerns and has therefore violated Articles 2 (2) and 8 (2) of
                               repute of the earlier trade mark           the Merger Regulation (2).
                               and constitutes an unfair advan-
                               tage for Delta.
                                                                          In the contested Decision in the present case, the Commission
(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the           imposed on Shell and DEA the obligation to make available,
    Community trade mark (OJ 11, p. 1)
                                                                          up to a certain quantity, access to Shell’s terminal facilities to
                                                                          producers of ethylene. This remedy is based, according to the
                                                                          applicant, on an error of assessment. The applicant submits
                                                                          that this obligation is unclear in its definition of the entities
                                                                          that should be granted access. As a consequence, this remedy
                                                                          could be made ineffective if access is granted to entities who
                                                                          should not, according to the applicant, benefit from this access.
Action brought on 5 April 2002 by Ineos NV against the                    The remedy is also limited in time, while the situation after its
         Commission of the European Communities                           expiry will remained the same as it was originally. Furthermore,
                                                                          the applicant claims that the volume of ethylene that can be
                          (Case T-99/02)                                  put on the ARG+market in this manner is insufficient to
                                                                          remedy the constraints on competition caused by the oper-
                                                                          ation.
                         (2002/C 156/58)
                    (Language of the case: English)
                                                                          The Commission also made an error in law since there is no
                                                                          protection for third parties on the market until the remedies
                                                                          in the Shell/DEA case and in the BP/E.ON case become
An action against the Commission of the European Communi-                 effective. The remedies imposed in each case are only effective
ties was brought before the Court of First Instance of the                if the remedies in the other case are operative as well. The
European Communities on 5 April 2002 by Ineos NV,                         remedies to be given by Shell/DEA will not, however, be
represented by Mr Julian Ellison, Mr Mark Clough QC and Mr                operative until 1 January 2003 or later. Therefore, the
Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).                 jointly dominant position will, according to the applicant, be
                                                                          unconstrained until all the remedies are operative. Meanwhile,
                                                                          the contested Decision does not provide for any interim
The applicant claims that the Court should:                               protection for third parties.
—     annul, under Article 230 of the EC Treaty, the Com-
      mission Decision in case no. COMP/M.2389-Shell/DEA
      in its entirety and/or insofar as it concerns the market for        The applicant claims in addition that the errors of assessment
      supply of merchant ethylene;                                        and the error in law of the Commission concerning the remedy
                                                                          in the BP/E.ON case is another ground for annulment of the
—     order the Commission to pay the costs.                              Decision contested in the present case since both cases are so
                                                                          closely related to each other. In the BP/E.ON case, the
                                                                          Commission considered that the commitment to reduce the
                                                                          combined shareholding of BP and Veba Oel, by two out of
Pleas in law and main arguments                                           three shares, would achieve open access at reasonable prices
                                                                          for use of the ARG pipe network.
The applicant in the present case is a purchaser of merchant
ethylene on the ARG+ pipeline network in Belgium, the
Netherlands and western Germany.
                                                                          The applicant argues that the remedy in the BP/E.ON case
                                                                          gives no control over how the future shareholders will conduct
The applicant contests the Decision of the Commission                     themselves with regard to the company’s future strategy, and
declaring an operation where Deutsche Shell GmbH would                    that there is, therefore, no guarantee that this remedy would
acquire sole control of the undertaking DEA Mineraloel AG                 reconstitute the ARG pipe network as a common carrier.
under certain conditions compatible with the common market                Furthermore, the applicant states that the transfer of a share
and the EEA Agreement. These conditions were necessary                    needs the unanimous approval of all the other shareholders,
since the operation gave rise to competition concerns on the              which constitutes an element of uncertainty in the remedy.
ARG+ merchant ethylene market. In particular, there was a                 The applicant submits also that the Commission has made an
risk of creating a joint dominant position of Shell/DEA and               error in law since the remedy gives no provisional solution to
BP/Veba Oel (case no. COMP/M.2533-BP/E.ON (1). These cases                the problems of lack of access and high transportation charges
were treated similarly by the Commission.                                 on the pipe network until the divestment of the shares.
 ---pagebreak--- 29.6.2002               EN                       Official Journal of the European Communities                                         C 156/31
According to the applicant, the remedy in the Shell/DEA case                Pleas in law and main arguments
remains ineffective as long as this problem is not addressed.
According to the applicant, the commitment from BP/E.ON,
that it will not use its voting rights to block any special                 The applicant in the present case is a purchaser of merchant
resolutions pending the sale of the shares to be divested, is               ethylene outside the ARG+ pipeline network.
insufficient and remains unclear on what is to happen in a
number of situations. The applicant claims therefore that this
commitment does not offer an interim solution at all.
                                                                            The applicant contests the Decision of the Commission
                                                                            declaring an operation where Deutsche Shell GmbH would
                                                                            acquire sole control of the undertaking DEA Mineraloel AG
                                                                            under certain conditions compatible with the common market
(1) With the operation examined by the Commission in this case, BP,         and the EEA Agreement. These conditions were necessary
    together with E.ON would acquire joint control of Veba Oel. The         since the operation gave rise to substantial competition
    Decision of the Commission in case no. COMP/M.2533-BP/E.ON              concerns on the ARG+ merchant ethylene market. In particu-
    is also contested by this applicant in Case T-101/02.                   lar, there was a risk of creating a joint dominant position of
(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on              Shell/DEA and BP/Veba Oel (case no. COMP/M.2533-BP/
    the control of concentrations between undertakings (OJ L 395 of         E.ON (1).
    30.12.1989 p. 1; text republished in OJ L 257 of 21.9.1990,
    p. 13).
                                                                            According to the applicant, the present Decision has an
                                                                            important effect on the ARG+ merchant ethylene market.
                                                                            There is a clear price link between this market and markets for
                                                                            merchant ethylene outside the ARG+, in which the applicant
                                                                            operates.
                                                                            The pleas and arguments put forward in the present case are
                                                                            the same as those put forward in Case T-99/02.
Action brought on 5 April 2002 by EVC International N.V.
against the Commission of the European Communities
                                                                            (1) With the operation examined by the Commission in this case, BP,
                                                                                together with E.ON, would acquire joint control of Veba Oel. The
                           (Case T-100/02)                                      Decision of the Commission in case no. COMP/M.2533-BP/E.ON
                                                                                is also contested by this applicant in Case T-102/02.
                          (2002/C 156/59)
                    (Language of the case: English)
                                                                            Action brought on 5 April 2002 by Ineos NV against the
An action against the Commission of the European Communi-                             Commission of the European Communities
ties was brought before the Court of First Instance of the
European Communities on 5 April 2002 by EVC International
N.V., represented by Mr Julian Ellison, Mr Mark Clough QC                                              (Case T-101/02)
and Mr Matthew Hall of Ashurst Morris Crisp, Brussels
(Belgium).
                                                                                                      (2002/C 156/60)
The applicant claims that the Court should:                                                     (Language of the case: English)
—      annul under Article 230 of the EC Treaty, the Commission
       Decision in case no. COMP/M.2389-Shell/DEA in its
       entirety and/or insofar as it concerns the market for                An action against the Commission of the European Communi-
       supply of merchant ethylene;                                         ties was brought before the Court of First Instance of the
                                                                            European Communities on 5 April 2002 by Ineos NV,
                                                                            represented by Mr Julian Ellison, Mr Mark Clough QC and Mr
—      order the Commission to pay the costs                                Matthew Hall of Ashurst Morris Crisp, Brussels (Belgium).