CELEX: C2004/007/68
Language: en
Date: 2004-01-10 00:00:00
Title: Case T-351/03: Action brought on 10 October 2003 by Schneider Electric S.A. against the Commission of the European Communities

10.1.2004               EN                          Official Journal of the European Union                                             C 7/37
Pleas in law and main arguments                                             Electric S.A., established in Rueil-Malmaison (France), rep-
                                                                            resented by M. Pittie and A. Winckler, lawyers.
The contested decision by the Commission approves the
concentration of several Austrian undertakings with the under-              The applicant claims that the Court should:
takings E&S GmbH and Verbund Austrian Power Trading AG,
subject to conditions.                                                      —     order the Community to pay it the sum of
                                                                                  EUR 1 663 734 716,76;
The applicants claim that E&S GmbH and Verbund Austrian
Power Trading AG are not a full-function joint venture for the              —     such sum to be reduced, if appropriate, by an amount
purpose of Article 3 of the Merger Regulation (1) in conjunction                  not exceeding EUR 1 663 595,74, depending on the
with the Notice on the concept of full-function joint ven-                        outcome of the applications for taxation of the costs in
tures (2). In particular, there is a lack of joint control, sufficient            Cases T-310/01, T-77/02 and T-77/02 R;
independent resources, independent staff management and the
power to procure a substantial proportion of electrical current             —     such sum to be increased by interest accrued since
from outside the parent company’s sphere of influence and to                      4 December 2002 until full payment thereof, at the rate
be allowed to sell it freely on the market. Concerted practices                   of 4 % per year;
directly related to that merger also invalidate the proposal
under Article 2(4) of the Regulation in conjunction with                    —     such sum to be increased by the amount of tax for which
Article 81(1) and (2) EC. The Commission should have come                         Schneider will be liable on its receipt;
to that conclusion when it examined the proposal.
                                                                            —     order the Commission to pay all the costs.
The applicants also claim that, in addition to that merger, a
likely ‘group effect’ can be expected to result in further
concerted practices, which would also be invalid under
Article 81(2) EC.                                                           Pleas in law and main arguments
Moreover, the applicants maintain that the planned project                  The applicant company in this case seeks to obtain compen-
would greatly restrict free competition in the Austrian elec-               sation for the loss which it suffered as a result of the
tricity market and further seal off the Austrian electricity                Commission’s conduct in dealing with Case COMP/M.2283 —
market from that of the European Community, since it would                  Schneider Electric/Legrand, which gave rise to the judgments
further raise the threshold for access to the Austrian electricity          in Case T-310/01 (1) and Case T-77/02 (2).
market. The conditions laid down by the Commission will not
alter that result.
                                                                            It claims in that regard that the Commission, in the course of
                                                                            the proceeding which led to the prohibition decision of
(1) Council Regulation (EEC) No 4064/89 on the control of concen-           10 October 2001, made numerous errors most of which were
    trations between undertakings (OJ 1990 L 257, p. 13).                   found established by the Court of First Instance. It also claims
(2) OJ 1998 C 66, p. 1.                                                     that, during the proceeding after that prohibition decision, the
                                                                            Commission made errors, not yet established by the Court,
                                                                            which have increased the damage suffered. In its view, such
                                                                            conduct by the Commission should be regarded as manifestly
                                                                            and seriously exceeding the limits of its discretion to assess the
                                                                            compatibility of a concentration (with the common market).
Action brought on 10 October 2003 by Schneider Electric                     It is a question, in particular, of a lack of fairness by the
S.A. against the Commission of the European Communi-                        Commission in the proceeding which led to the decision of
                                  ties                                      10 October 2001, of infringement of the applicant’s defence
                                                                            rights, of orchestration of the relations between the parties to
                          (Case T-351/03)                                   the concentration, of infringement of the right to be heard by
                                                                            an impartial authority, of its intransigence concerning the
                                                                            detailed rules of the separation imposed on 30 January 2002,
                            (2004/C 7/68)                                   of serious and manifest failure to take into account its exclusive
                                                                            jurisdiction and of the erroneous analysis of the corrective
                    (Language of the case: French)                          measures proposed in November 2002.
                                                                            (1) Schneider v Commission [2002] ECR II-4071.
                                                                            (2) Schneider v Commission [2002] ECR II-4201.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 10 October 2003 by Schneider