Action brought on 16 December 2010 - Vivendi v Commission

(Case T-567/10)

Language of the case: French

Parties

Applicant: Vivendi (Paris, France) (represented by: O. Fréget, J.Y. Ollier and M. Struys, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

declare the present action admissible;

annul the Commission's decision of 1 October 2010 by which it rejected the complaint lodged by Vivendi on 2 March 2009 (registered under number 2009/4269), for infringement by the French Republic of Directive 2002/77/EC of 16 December 2002 on competition in the markets for electronic communications networks and services and, consequently, Article 106 TFEU, by granting a regulatory advantage as regards setting the level of telephone subscriptions;

order the Commission to pay the costs incurred by the applicant before the General Court.

Pleas in law and main arguments

In support of its action, the applicant raises three pleas as regards the substance:

1.    The first plea is based on an infringement of the principle of sound administration in that the Commission limited itself to a summary examination of the complaint submitted to it by the applicant.

2.     The second plea is based on an error of law in relation to the assessment of the concept of special and exclusive rights within the meaning of Directive 2002/77/EC ¹ and of Article 106(3) TFEU.

-    The applicant submits that the Commission cannot refrain from sanctioning the fact that the French Republic granted a regulatory advantage to France Télécom by setting the tariff for the universal service telephone subscription at a level which excludes the services offered by any of France Télécom's competitors by referring to the fact that no private operator made an application to eliminate the regulatory advantage.

-    The applicant claims, in the alternative, that such applications were made.

3.    The third plea is based on an error of law and a manifest error of assessment in relation to the scope of the obligations of the national regulator resulting from the electronic communications directives, since the conduct of the Member State cannot be excused by the incompleteness or imprecision of the regulatory framework.

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¹ - Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ 2002 L 249, p. 21).