Action brought on 21 January 2011 - Italy v Commission

(Case T-45/11)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul Commission Decision C (2010) 7893 final of 10 November 2010, notified to the Italian Republic by memorandum SG-Greffe (2010) D/18018 of 11 November 2010, refusing to refer Case COMP/M.5960 - Crédit Agricole/Cassa di Risparmio della Spezia/Agenzie Intesa Sanpaolo.

Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the Commission's decision refusing the Italian authorities' request for a referral to the competition authorities, pursuant to Article 9 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), of the concentration notified to the Commission by means of which Crédit Agricole S. A. acquired, through its subsidiary Cassa di Risparmio di Parma e Piacenza S.p.A., sole control over Cassa di Risparmio della Spezia S.p.A., which is currently controlled by Intesa Sanpaolo.

The applicant relies on five grounds in support of its action.

First ground, alleging infringement of Article 9 of Regulation (EC) No 139/2004 in so far as the Commission claimed that the request to refer the case was out of time and unreasoned.

Second ground, alleging infringement of Article 9(2)(a), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

It is submitted in that connection that the Commission incorrectly attached importance to the fact that after the concentration the market shares would remain unchanged. In fact, Crédit Agricole would achieve such shares by means of concentration and not, like Intesa Sanapaolo pre-concentration, as a result of internal expansion. There was therefore an impact on the provincial retail banking services market.

Third ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

The applicant considers, contrary to what is claimed by the Commission, that the provincial banking services market exists: the users of such services are not inclined to move and it is difficult for other operators to enter a saturated provincial market. There was therefore a restricted market which did not form a substantive part of the common market.

Fourth ground, alleging infringement of Article 9(2)(a) and (b), subparagraph (b) of the first subparagraph of Article 9(3) and the second subparagraph of Article 9(3) of Regulation (EC) No 139/2004 and failure to state reasons.

In this connection, the applicant submits that the Commission failed to take account of the infringement proceedings initiated by the competition authorities against Crédit Agricole and Intesa Sanpaolo, which should therefore have been regarded, for the purpose of determining the effect on the market, as related parties and not competitors.

Fifth ground, alleging infringement of Articles 1 and 9(2) and (3) of Regulation (EC) No139/2004 and the principles of subsidiarity and proportionality.

The applicant is of the view that the concentration was not of Community interest and that the competition authorities were better placed to make such an assessment. At the very least, the Commission should have referred the part of the operation which affected the provincial markets mentioned in the decision.

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