CELEX: C2002/068/34
Language: en
Date: 2002-03-16 00:00:00
Title: Case T-9/02: Action brought on 22 January 2002 by adidas International B.V., Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), DSM Finance B.V., DTG Finance B.V., Heineken N.V., ING Verzekeringen N.V., Koninklĳke Ahold N.V., Landis Group International B.V., Unilever N.V. and Wolters Kluwer N.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-
 ---pagebreak--- C 68/20                EN                   Official Journal of the European Communities                                      16.3.2002
national B.V., established in Amsterdam, Coöperatieve Centrale         Action brought on 18 January 2002 by Marie-Claude
Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland), estab-            Girardot against Commission of the European Com-
lished in Amsterdam, DSM Finance B.V., established in Heerlen                                      munities
(Netherlands), DTG Finance B.V., established in The Hague,
Heineken N.V., established in Amsterdam, ING Verzekeringen
N.V., established in The Hague, Koninklijke Ahold N.V.,                                         (Case T-10/02)
established in Zaandam (Netherlands), Landis Group Inter-
national B.V., established in Utrecht (Netherlands), Unilever                                   (2002/C 68/35)
N.V., established in Rotterdam (Netherlands), and Wolters
Kluwer N.V., established in Amsterdam, all represented by
E.H. Pijnacker Hordijk and S.B. Noë, lawyers.                                            (Language of the case: French)
The applicants claim that the Court should:                            An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
                                                                       European Communities on 18 January 2002 by Marie-Claude
—     annul the Commission’s decision of 11 July 2001 to               Girardot, residing in Brussels, represented by Nicolas Lhoëst,
      initiate the procedure laid down in Article 88(2) EC in
                                                                       avocat, with an address for service in Luxembourg.
      respect of aid measure C 51/2001 (ex NN 48/2000) —
      International financing activities;
                                                                       The applicant claims that the Court should:
—     order the Commission to pay the costs.
                                                                       —     annul the decision of the Commission of 13 March
                                                                             2001 rejecting the applicant’s candidature in respect of
                                                                             COM/R/502310/2001, COM/R/502253/2001, COM/R/
                                                                             508026/2001, COM/R/502529/2001, COM/R/506004/
                                                                             2001, COM/R/502059/2001 and COM/R/502105/2001,
Pleas in law and main arguments
                                                                             published in the Spécial Recherche vacancy notice of
                                                                             12 February 2001;
By the contested decision, the Commission initiated an investi-        —     annul the decision of the Commission of 15 March
gation procedure concerning new State aid in respect of the                  2001 rejecting the applicant’s candidature in respect of
Netherlands fiscal legislation relating to international group               COM/2001/CCR16/R, published in the Spécial CCR
financing activities (‘the CFA regime’). In their application in             vacancy notice of 9 February 2001;
the present proceedings, the applicants deny that any new
State aid is involved.                                                 —     annul the appointments made to the abovementioned
                                                                             posts;
                                                                       —     order the defendant to pay all the costs.
The applicants plead infringement of Article 88 of the EC
Treaty and of Regulation No 659/1999, inasmuch as the
Commission should have initiated the procedure in relation to
existing aid rather than that in respect of new aid. According
to the applicants, it was not until after the CFA regime was           Pleas in law and main arguments
introduced in 1997 that the Commission proceeded to regard
such measures as constituting aid. As evidence of this, the
applicants refer to the Commission’s observations of 1984 and          According to the applicant, the Commission added a new
1987 in relation to notification of a similar system by the            condition for the admission of candidates to posts, refusing
Belgian Government, and also to the fact that the Belgian              her candidature on the ground that the post is only available
system is currently being investigated in accordance with the          to staff covered by the Staff Regulations. Since that condition
procedure for existing aid.                                            does not appear in the vacancy notices, the applicant submits
                                                                       that it infringes the terms of those notices and alleges
                                                                       infringement of Articles 4 and 29 of the Staff Regulations
                                                                       inasmuch as the Commission has not organised a competition
The applicants further claim that the contested decision               for those posts. The applicant also alleges manifest error of
violates the principle of equality, the general duty of care and       assessment and infringement of Article 27 of the Staff
the principle of the protection of legitimate expectations.            Regulations in that the Commission did not take account of
Moreover, no sufficient statement of reasons has been given            the applicant’s qualifications. Finally, the applicant claims that
for the classification of the measure as new State aid.                a statement of reasons has not been provided for the contested
                                                                       decisions.