Notice for the OJ

 

Action brought on 19 February 2003 by TQ3 Travel Solutions GmbH and TQ3 Travel Solutions EMEA GmbH against the Commission of the European Communities.

    (Case T-59/03)

    Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 February 2003 by TQ3 Travel Solutions GmbH, Bremen, Germany, and TQ3 Travel Solutions EMEA GmbH, Bremen, Germany, represented by Dr Thomas Jestaedt, Mr Christopher Thomas and Dr Thomas Loest, Lawyers.

The applicant claims that the Court should:

listnum "WP List 1" \l 1annul the Commission decision of 9 December 2002 rejecting the applicant's complaint in Case COMP/A.38321/D2-TQ3 Travel Solutions GmbH/Opodo Limited;

listnum "WP List 1" \l 1order the Commission to pay the applicants' costs.

Pleas in law and main arguments:

The applicants are active in the travel agency business, especially for business passenger air transport services and connected services.

On 3 November 2000, a joint venture agreement setting up Opodo Limited, an online travel portal created by nine of the largest European airlines, was notified to the Commission. Following the Notice published by the Commission setting out the undertakings proposed by the notifying parties and the intention of the Commission to clear the joint venture, one of the applicants filed a formal complaint against the creation of Opodo, alleging infringements of Article 81 and 82 of the EC Treaty. In the contested Decision, the Commission rejects the complaint of the applicant.

In support of their application, the applicants invoke a manifest error of assessment and an infringement of the Commission's obligation to investigate complaints with due diligence, with respect to the risk of coordination under Article 81(1) EC Treaty.

Opodo is a joint selling agency set up by competitors representing most of the airline sector and provides, according to the applicants, a significant opportunity for those airlines to align their prices. The applicants claim that the Commission made a manifest error of assessment in reaching its conclusion that the undertakings will ensure that Opodo is not used for the exchange of commercially sensitive information and that Opodo will not be used as a vehicle for the shareholders to coordinate their competitive behaviour.

The applicants invoke furthermore an infringement of the obligation of the Commission to investigate complaints with due diligence, an infringement of the applicant's right to receive a response to its complaint, and a manifest error of assessment with respect to the distortion of competition in the distribution of airline tickets under Article 81(1) EC Treaty.

According to the applicants, the Commission failed to address the specific concern in the complaint that the Opodo infringed Article 81(1) EC Treaty because it was intended to and would have the effect of enabling the airlines to secure joint control of the distribution of airline tickets, forcing independent travel agencies out of the market.

Finally, the applicants invoke an infringement of the obligation of the Commission to investigate complaints with due diligence, an error of law and a manifest error of assessment with respect to discrimination under Article 82(2) EC Treaty.

According to the applicants, the Commission failed to investigate with due diligence the price comparisons provided in the complaint showing apparent discrimination. The applicants claim the Commission made an error of law in taking the position that the denial of lower priced tickets might be justified by the fact that the applicants focus on business travellers and made an error of assessment when rejecting the relevance of the price comparisons.

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