CELEX: C2001/331/36
Language: en
Date: 2001-11-24 00:00:00
Title: Case T-203/01: Action brought on 4 September 2001 by Manufacture Française des Pneumatiques Michelin against the Commission of the European Communities

24.11.2001            EN                       Official Journal of the European Communities                                     C 331/21
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              Pleas in law and main arguments
                           INSTANCE
                    of 10 September 2001
                                                                          The applicant is a French tyre manufacturer charged, in the
in Case T-180/01 R: Euroagri Srl v Commission of the                      contested decision, with imposing on its dealers general price
                   European Communities                                   conditions and other commercial practices that have been the
                                                                          subject of a proceeding pursuant to Article 82 of the EC
        (Procedure for interim relief — Admissibility)                    Treaty.
                        (2001/C 331/35)
                  (Language of the case: Italian)                         The Commission challenges, first, the system of discounts,
                                                                          including quantitative rebates which, according to the Com-
                                                                          mission, constitute an abuse. The applicant claims that the
In Case T-180/01 R: Euroagri Srl, established in Monte Vidon              contested decision misinterprets Article 82 EC. The Com-
Combatte (Italy), represented by W. Massucci, avocat, against             mission wrongly tries to claim that an undertaking in a
Commission of the European Communities (Agent: L. Visag-                  dominant position may not take advantage of a system of
gio) — application for suspension of the operation of Com-                discounts, and the system of rebates for quantity is not, in
mission Decision C(2001) 1274 of 6 June 2001 cancelling the               practice, a ‘loyalty inducing’ abuse as the Commission claims.
aid granted to the company Euroagri under Commission                      Further the system does not have a partitioning effect, nor is it
Decision C(92) 3124 of 3 December 1992 in the context of                  unfair.
project No 92.IT.06.069 — the President of the Court of First
Instance has made an order on 10 September 2001, in which
he:
                                                                          Second, by the contested decision the Commission complains
1.   Dismissed the application for interim relief;                        that the applicant has introduced premiums, including a
                                                                          ‘service premium’ which, according to the Commission, is
2.   Ordered that the costs be reserved.                                  unfair. The applicant claims that the decision whether a
                                                                          condition is ‘unfair’ or not must be based on objective factors,
                                                                          and not on a mere subjective assessment by the Commission,
                                                                          and that the Commission has not shown that the rules
                                                                          implementing the service premium are unfair. The applicant
                                                                          further denies the allegedly ‘loyalty inducing’ nature of that
                                                                          premium. The fact that an undertaking obtains market infor-
Action brought on 4 September 2001 by Manufacture                         mation from its dealers cannot be regarded as an abuse, but as
Française des Pneumatiques Michelin against the Com-                      falling strictly within the bounds of normal competition.
           mission of the European Communities
                        (Case T-203/01)
                        (2001/C 331/36)                                   Third, the Commission considers that the conditions imposed
                                                                          on the dealers who are members of the ‘Friends of Michelin
                                                                          Club’ by the ‘Commercial Cooperation Agreement’ constitute
                  (Language of the case: French)                          an abuse. The applicant states that the purpose of the Club
                                                                          was to improve professional standards amongst dealers, and
                                                                          that the agreement is not in any way exclusive. The applicant
An action against the Commission of the European Communi-                 denies that the member dealers are under a duty to achieve a
ties was brought before the Court of First Instance of the                certain percentage of their turnover with sales of Michelin
European Communities on 4 September 2001 by Manufacture                   products, and claims that the Commission has infringed the
Française des Pneumatiques Michelin, established in Clermont-             rules on the taking of evidence. The applicant claims that the
Ferrand (France), represented by Jean-François Bellis, Markus             accusations of the Commission as regards the other obligations
Wellinger, Denis Waelbroeck and Mats Johnsson, avocats.                   of the members of the Club are based on systematic prejudice
                                                                          against the applicant, a subjective and flawed interpretation of
                                                                          the facts, and on ignorance of economic reality.
The applicant claims that the Court should:
—    annul the Commission Decision of 20 June 2001 in
     Case COM/E-2/36.041 — PO — Michelin relating to a
     proceeding pursuant to Article 82 EC,                                Further the applicant claims that the Commission has failed to
                                                                          carry out a detailed analysis of the effects of the practices in
—    order the Commission to pay the costs.                               issue.
 ---pagebreak--- C 331/22                EN                      Official Journal of the European Communities                                        24.11.2001
Finally, the applicant challenges several aspects of the Com-              to BAI in the period 1995-1998. The applicant considered
mission’s decision fixing the amount of the fine imposed,                  that if the enquiry was limited to this period, a vast amount of
including the starting point adopted for calculating the basic             other State aid received by BAI would be ignored, and in
amount, the calculation of the duration of the infringement,               February 2001, the applicant submitted a formal complaint.
the increase in the basic amount for aggravating factors, and
the percentage reduction from the basic amount for mitigating
factors. It claims, inter alia, that the contested decision infringes      In December 2000, the applicant commenced a procedure
Article 7 of the European Convention for the Protection of                 against the Commission under Article 232 EC for its failure to
Human Rights and Fundamental Freedoms.                                     act in relation to all the elements of the applicant’s complaint.
                                                                           That procedure is now the subject of Court proceedings (2).
                                                                           By the present action, the applicant requests the Court to
                                                                           annul the Commission Decision to the extent that it approves
                                                                           aid granted to BAI. It submits that the limitation period
Action brought on 7 September 2001 by P&O Ferries                          provided for in Regulation (EC) No 659/1999 (3) does not
(Portsmouth) Limited against the Commission of the                         apply to this case, and that the pre-1989 State aid identified in
                     European Communities                                  the complaint must be addressed expressly by the Commission.
                                                                           It alleges that the Commission is wrong in finding that the
                                                                           three shipowning companies (‘SPCs’) and BAI constitute a
                           (Case T-206/01)                                 single economic group and that charter payments between
                                                                           BAI and the SPCs are irrelevant to State aid laws.
                          (2001/C 331/37)
                   (Language of the case: English)                         Further, the applicant submits that the Commission’s con-
                                                                           clusions in relation to the market economy investor test are
                                                                           wrong, and the applicant alleges that a number of guarantees
                                                                           and public sector cash grants and loans should have been
An action against the Commission of the European Communi-                  taken into account in the contested decision.
ties was brought before the Court of First Instance of the
European Communities on 7 September 2001 by P&O Ferries
(Portsmouth) Limited, represented by Julian Ellison and Mark               As far as the restructuring aid is concerned, the applicant
Clough QC of Ashurst Morris Crisp, Brussels (Belgium).                     rejects the Commission’s findings that the SPCs/BAI economic
                                                                           group has made, and will make, satisfactory returns on equity
                                                                           and that BAI pays market rate charter to the SPCs. It
The applicant claims that the Court should:                                submits that these findings are based on wholly unreasonable
                                                                           assumptions as to the residual values of the vessels. The
—     annul under Article 230 (ex 173) of the EC Treaty the                applicant further rejects the Commission’s conclusions about
      Commission Decision C (2001) 1442 of 8 May 2001                      the relevant market, its finding that a withdrawal of BAI would
      concerning State aid implemented by France in favour                 leave the applicant in a monopoly position on the relevant
      of the Bretagne Angleterre Irlande company (save for                 market(s) and its assessment of the intensity of the restructur-
      Articles 1(2) and 1(3)) to the extent that it has approved           ing aid package.
      aid granted to BAI,
—     order the Commission to pay the applicant’s costs.                   Finally, the applicant submits that the Commission has
                                                                           infringed a number of procedural requirements under the state
                                                                           aid rules, in particular the requirement to inform the parties
                                                                           concerned of the matters under investigation.
Pleas in law and main arguments
The applicant is a ferry operator which provides tourist and
freight ferry services on certain routes between France and the
United Kingdom in the western end of the Channel. Its main
competitor is the French ferry operator Bretagne-Angleterre-
Irlande SA, ‘Brittany Ferries’ (‘BAI’).                                    (1) Procedure No C 31/98.
                                                                           (2) Case T-49/01 (OJ 2001 C 161, p. 19).
                                                                           (3) Council Regulation(EC)No 659/1999 of 22.3.1999 laying down
The applicant brought its concerns in relation to BAI’s receipt                detailed rules for the application of Article 93 of the EC Treaty
of State aid informally to the Commission’s attention in                       (OJ 1999 L 83, p. 1).
May 1998, very shortly after the Commission’s opening of the
formal procedure (1). It later became clear to the applicant that
the Commission was focusing exclusively on State aid awarded