CELEX: C2003/070/08
Language: en
Date: 2003-03-22 00:00:00
Title: Case C-13/03 P: Appeal brought on 13 January 2003 by the Commission of the European Communities against the judgment delivered on 25 October 2002 by the First Chamber of the Court of First Instance of the European Communities in case T-80/02 between Tetra Laval BV and the Commission of the European Communities

22.3.2003               EN                        Official Journal of the European Union                                              C 70/5
where Sidel, with 60 % market share for all SBM machines by               As the concentration had already been implemented, the
capacity, has a leading position. By buying Sidel, Tetra                  Commission issued a statement of objections, to which Tetra
eliminated the strongest independent competitive constraint               replied, and held a hearing, with a view to taking a decision
coming from the biggest supplier on the PET side and would                setting out measures in order to restore conditions of effective
thus strengthen its carton dominance.                                     competition pursuant to Article 8(4) of the Regulation. On
                                                                          30 January 2002, the Commission adopted such a decision
                                                                          (‘the divestiture decision’).
( 1) OJ C 68, 16.03.2002, p. 19.
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
     the control of concentrations between undertakings (OJ L 395,
     30.12.1989, p. 1).
( 3) Commission Decision C (2001) 3345 final of 30 October 2001
     declaring a concentration to be incompatible with the common         Article 1 of the divestiture decision orders Tetra ‘to separate
     market, Case No COMP/M.2416 Tetra Laval/Sidel.                       itself from Sidel... in accordance with the provisions of the
                                                                          Annex to this Decision’. Point 1(5) of the Annex requires Tetra
                                                                          to divest itself of its entire shareholding in Sidel. Point 4(1) of
                                                                          the Annex specifies a deadline for completion of the divestiture.
Appeal brought on 13 January 2003 by the Commission                       By separate applications, Tetra sought the annulment of both
of the European Communities against the judgment deliv-                   the prohibition decision (case T-5/02) and the divestiture
ered on 25 October 2002 by the First Chamber of the                       decision (case T-80/02). The Court of First Instance gave
Court of First Instance of the European Communities in                    judgment in both cases on 25 October 2002.
case T-80/02 between Tetra Laval BV and the Commission
                  of the European Communities
                         (Case C-13/03 P)
                                                                          In its judgment in case T-5/02, the Court of First Instance
                                                                          annulled the prohibition decision.
                          (2003/C 70/08)
An appeal against the judgment delivered on 25 October 2002
                                                                          In its judgment in case T-80/02 (‘the contested judgment’), the
by the First Chamber of the Court of First Instance of the                Court of First Instance observed that the concentration had
European Communities in case T-80/02 ( 1) between Tetra
                                                                          indeed been implemented and that the separation of the
Laval BV and the Commission of the European Communities,                  undertakings involved in the concentration was the logical
was brought before the Court of Justice of the European                   consequence of the prohibition decision. It added that the
Communities on 13 January 2003 by the Commission of the
                                                                          adoption of a divestiture decision presupposes that the preced-
European Communities, represented by Michel Petite, Anthony               ing prohibition decision is valid. Accordingly, the annulment
Whelan and Per Hellström, acting as agents, with an address               of the prohibition decision deprives the divestiture decision of
for service in Luxembourg.
                                                                          any legal basis. The Court of First Instance concluded that,
                                                                          since it had annulled the prohibition decision by its judgment
                                                                          in case T-5/02, the action for the annulment of the divestiture
The Appellant claims that the Court should:                               decision had to be upheld, without examining the other pleas
                                                                          raised by Tetra.
—      annul the judgment of the Court of First Instance of
       25 October 2002 in case T-80/02;
—      order Tetra Laval BV to pay the Commission’s costs.
                                                                          The Commission has appealed on a number of points of law
                                                                          against the judgment of the Court of First Instance in case T-
                                                                          5/02. Should that appeal lead to the annulment of the
Pleas in law and main arguments                                           judgment of the Court of First Instance in that case, the
                                                                          judgment of the Court of First Instance in case T-80/02 will be
                                                                          based on a premise vitiated by an error of law, that is, the
The Commission adopted a decision pursuant to Article 8(3)                invalidity of the prohibition decision. Just as the annulment of
of the Merger Regulation (2) on 30 October 2001 prohibiting               the prohibition decision was the sole ground for the annulment
the notified concentration between Tetra Laval SA, a wholly               of the divestiture decision, the invalidity of the judgment
owned subsidiary of Tetra Laval BV (‘Tetra’) and Sidel SA (‘the           annulling the former would entail the annulment of the
prohibition decision’) ( 3).                                              judgment pronouncing the invalidity of the latter.
 ---pagebreak--- C 70/6                   EN                        Official Journal of the European Union                                             22.3.2003
The Commission submits, therefore, in reliance on the detailed             II.     a) Is Article 7(5) of the Electricity Directive ( 1) to be
legal submissions in its appeal in case T-5/02, that the                               interpreted as meaning that the prohibition of dis-
contested judgment should be annulled in the event that the                            crimination contained therein is restricted to the
appeal against the Court of First Instance’s judgment in case T-                       requirement that the system operator must not draw
5/02 is successful.                                                                    any distinction in granting access to the system by
                                                                                       means of technical rules?
( 1) OJ C 156, 29.06.2002, p. 27.                                                     If so, is an allocation method relating to the cross-
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on                       border transport capacity of electricity to be regarded
     the control of concentrations between undertakings (OJ L 395,
                                                                                      as a technical rule within the meaning of the abov-
     30.12.1989, p. 1).
( 3) Commission Decision C (2001) 3345 final of 30 October 2001                       ementioned provision?
     declaring a concentration to be incompatible with the common
     market, Case No COMP/M.2416 Tetra Laval/Sidel.                               b) In the event that the allocation method must be
                                                                                      regarded as a technical rule or in the event that
                                                                                      Article 7(5) of the Electricity Directive is not limited
                                                                                      to technical rules, is a rule under which preferential
                                                                                      cross-border transport capacity is made available for
                                                                                      contracts concluded in connection with a particular
                                                                                      public task compatible with the prohibition of dis-
Reference for a preliminary ruling by the College van
                                                                                      crimination contained in that article?
Beroep voor het bedrijfsleven by judgemnt of that Court
of 13 November 2002 in the proceedings between 1. Ver-
eniging voor Energie, Milieu en Water, 2. Amsterdam
                                                                           (1 ) Directive 96/92/EC of the European Parliament and of the Council
Power Exchange Spotmarket B.V., and 3. N.V. Eneco and                           of 19 December 1996 concerning common rules for the internal
Directeur van de Dienst uitvoering en toezicht energie;                         market in electricity (OJ L 27 of 30.01.1997, p. 20).
Joined party: B.V. Netherlands Elektriciteit Administratie-
                               kantoor
                           (Case C-17/03)
                           (2003/C 70/09)
                                                                           Appeal brought on 17 January 2003 by Vela Srl and
Reference has been made to the Court of Justice of the                     Tecnagrind SL against the judgment delivered on 7 Nov-
European Communities by judgment of the College van Beroep                 ember 2002 by the Third Chamber of the Court of First
voor het bedrijfsleven (Administrative Court for Trade and                 Instance of the European Communities in Joined Cases
Industry) of 13 November 2002, received at the Court                       T-141/99, T-142/99, T-150/99 and T-151/99 between Vela
Registry on 16 January 2003, for a preliminary ruling in the               Srl and Tecnagrind SL and the Commission of the
proceedings between 1. Vereniging voor Energie, Milieu en                                        European Communities
Water, 2. Amsterdam Power Exchange Spotmarket B.V., and
3. N.V. Eneco and Directeur van de Dienst uitvoering en
toezicht energie; Joined party: B.V. Netherlands Elektriciteit                                         (Case C-18/03 P)
Administratiekantoor on the following questions:
                                                                                                        (2003/C 70/10)
I.     a) Can Article 86(2) EC be invoked to justify continuing
           to grant a company which was formerly entrusted
           with the operation of services of general economic
           interest and which entered into certain commitments             An appeal against the judgment delivered on 7 November
           in connection with such operation a special right to            2002 by the Third Chamber of the Court of First Instance of
           enable it to honour those commitments after the                 the European Communities in Joined Cases T-141/99, T-142/
           particular task assigned to it has been completed?              99, T-150/99 and T-151/99 between Vela Srl and Tecnagrind
                                                                           SL and the Commission of the European Communities was
       b) If this question is answered in the affirmative, is a rule       brought before the Court of Justice of the European Communi-
           which provides for the preferential allocation for a            ties on 17 January 2003 by the appellants, represented by
           period of ten years of half to a quarter (declining             Maurizio Carretta, lawyer.
           over time) of the cross-border transport capacity for
           electricity to the undertaking concerned nevertheless
           invalid because it                                              The appellants claim that the Court should:
           1.    is not proportionate in relation to the — public
                 — interest served thereby;                                1.     As regards the substance,
           2.    affects trade to such an extent as would be                      —     annul Commission Decision C (1999) 540 of
                 contrary to the interests of the Community?                            9 March 1999