Action brought on 8 April 2007 - Spira v Commission

(Case T-108/07)

Language of the case: English

Parties

Applicant: Diamanthandel A. Spira BVBA (Antwerpen, Belgium) (represented by: J. Bourgeois, Y. van Gerven, F. Louis and A. Vallery, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the Commission decision of 26 January 2007, pursuant to Article 7(2) of Council Regulation No 773/2004, in case COMP/38.826/B-2 - Spira/De Beers/DTC Supplier of Choice;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant contests the Commission's decision of 26 January 2007 in competition Case COMP/38.826/B-2 - Spira/De Beers/DTC Supplier of Choice, by which the Commission rejected the applicant's complaint regarding violations of Articles 81 and 82 EC in connection with the Supplier of Choice system applied by the De Beers Group for the distribution of rough diamonds, with the reasoning that there is not sufficient Community interest to act further on the applicant's complaint.

The applicant alleges that De Beers - a producer of rough diamonds who, according to the applicant, was mainly involved upstream with the sale of rough diamonds - is trying through its Supplier of Choice system to extend its control of the market to cover the entire diamond pipeline from mine to consumer, i.e. also the downstream markets.

In support of its application, the applicant invokes three pleas in law.

Firstly, the applicant claims that the Commission failed to honour its duty to conduct a careful and impartial investigation of the complaint and to examine with proper care and impartiality the anticompetitive practices denounced in the complaint.

Secondly, the applicant alleges that the Commission could not claim that there was a lack of sufficient Community interest to act on the complaint, in light of the size of the undertaking involved, the geographic scope of the anticompetitive practices and the damage to competition and the internal market caused by the infringements.

Thirdly and finally, the applicant submits that the Commission concluded to the absence of sufficient Community interest on the basis of an erroneous assessment, in fact and in law, of the circumstances of the case since:

1)    the Commission failed to take into account the manifest publicly stated anticompetitive object of De Beers' limited selective distribution system;

2)    the Commission could not assess the anticompetitive effects of the De Beers' distribution system without first assessing De Beers' dominance and market power;

3)    the Commission failed to take into account the numerous elements brought to its attention in the complaint demonstrating the inherently abusive and anticompetitive nature of the system;

4)    the Commission wrongly assessed the effectiveness of the revised Terms of Reference for the Ombudsman that De Beers had introduced to resolve disputes as to the implementation of the distribution system; and

5)    the Commission made an error of law and a manifest error of assessment of the facts in finding that De Beers' distribution system does not foreclose the market.

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