Notice for the OJ

 

Action brought on 10 January 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H. and Others against the Commission of the European Communities

    (Case T-3/02)

    (Language of the case: German)

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 January 2002 by Schlüsselverlag J.S. Moser Gesellschaft m.b.H., established in Innsbruck (Austria), J. Wimmer GmbH, established in Linz (Austria), Zeitungs- und Verlags-Gesellschaft m.b.H., established in Bregenz (Austria), Eugen Russ Vorarlberger Zeitungsverlag und Druckerei Gesellschaft mbH, established in Schwarzach (Austria), "Die Presse" Verlagsgesellschaft m.b.H., established in Vienna (Austria), and "Salzburger Nachrichten" Verlags-Gesellschaft m.b.H. & Co KG, established in Salzburg (Austria), represented by M. Krüger, lawyer.

The applicants claim that the Court should:

-     declare that, by failing to reach a decision on the complaint lodged by the applicants against a concentration with a Community dimension, which was notified and approved at national level by the Vienna Oberlandesgericht (Higher Regional Court), in its capacity as Kartellgericht (Restrictive Practices Court) by decision of 26 February 2001, or, in the alternative, by failing to require the parties to the concentration to notify the defendant of the concentration, the defendant failed to fulfil its obligations under the EC Treaty;

-     order the defendant to pay the costs.

Pleas in law and main arguments

By letter of 25 May 2001, the applicants, as owners of Austrian newspapers, lodged with the defendant a complaint regarding a media concentration which had been approved in Austria, to which the companies Bertelsmann, Gruner+Jahr, Raffeisen, KURIER-Magazine and NEWS were parties, and which, according to the applicants, had a Community dimension. The complaint was accompanied by the request that the parties to the concentration be required to

noify the concentration in accordance with Council Directive (EEC) No 4064/89.

DG Competition took the view, in a number of letters, that the abovementioned regulation was not applicable to the concentration in question, as there had only been a partial transfer, which did not involve at least two undertakings with turnovers of more than EUR 250 million. DG Competition pointed out, however, that that view was not binding on the defendant.

Since the defendant failed to react within two months to the applicants' request for a formal decision on the complaint, the applicants have brought an action under Article 232 EC for a declaration of failure to act. They submit that in the absence of a decision attributable to the defendant, it is not possible to bring an action for annulment before the Court of First Instance, and that the applicants are directly and individually concerned by the defendant's failure to adopt a decision.

The applicants claim that the national decision is invalid under Article 81 EC in conjunction with Regulation 4064/89, because, contrary to Article 21(2) of that regulation, the Republic of Austria applied its national competition law to a concentration with a Community dimension. In addition, they claim that there are two parties to the concentration with turnovers in excess of EUR 250 million, one of which does not achieve more than two-thirds of its annual turnover within one and the same Member State. Finally, this was not a partial transfer of an undertaking but a merger.

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