Action brought on 17 September 2010 - Vivendi v Commission

(Case T-432/10)

Language of the case: French

Parties

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

Defendant: European Commission

Form of order sought

Annulment of the Commission's Decision of 2 July 2010 in Case COMP/C-1/39.653 - Vivendi & Iliad / France Télécom, by which the European Commission rejected Vivendi's complaint of 2 March 2009 under Article 7 of Council Regulation (EC) No 1/2003, relating to practices of France Télécom considered to be contrary to Article 102 of the TFEU;

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

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision C(2010) 4730 of 2 July 2010 rejecting, for lack of Community interest, the complaint lodged by the applicant against France Télécom relating to its alleged abuse of a dominant position, in breach of Article 102 of the TFEU, on the French broadband and telephone subscription market, alleging that France Télécom practised structural discrimination in the tariffs for its wholesale supplies to the advantage of its retail division and maintained too high a tariff for recurrent access to the local loop.

In support of its action, the applicant puts forward a number of pleas in law alleging, among other things:

errors in law, manifest errors of assessment and breaches of its duty to examine carefully damage by the practices complained of to the functioning of the internal market, on the ground that the Commission confined itself to (i) examining only the mean level of prices for broadband on retail markets without inquiring whether that level of prices was actually likely to reveal the practices complained of, and (ii) a subjective assessment of the obsolete nature of the provision of a telephone subscription service;

an insufficient statement of reasons, errors in law and of fact and manifest errors of assessment on the ground that the Commission concluded that the possibility of establishing the existence of an infringement was very limited, since the Commission:

did not seek to examine the question of the discriminatory character of the prices actually invoiced by reference to the services actually supplied and wrongly asserted that the preliminary investigation had not revealed any documentary or other evidence;

decided that the calculation method used by France Télécom to set its tariffs for access to the local loop was validated by the Autorité de régulation des communications électroniques et des postes (Electronic Communications and Postal Regulation Authority) (ARCEP) and considered that the fact that France Télécom had sent it erroneous information without seeking to correct it was irrelevant in view of the method used;

distorted the object of the eviction tests submitted by the applicant, which was to establish the effects of the practices complained of;

disregard of the guarantees which apply to the investigation of complaints and to decisions to take no action in respect of abuse of a dominant position, the applicant (i) not having been given immediate access to adverse documents or to the documents in the file and (ii) not having been given sufficient time to submit its comments on those documents.

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