Notice for the OJ

 

Action brought on 2 October 2003 by Wanadoo Interactive S.A. against the Commission of the European Communities

    (Case T-340/03)

    (Language of the case: French)

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 2 October 2003 by Wanadoo Interactive S.A., whose registered office is in Issy-les-Moulineaux (France), represented by O.W. Brouwer, H. Calvet, M. Pittie and J. Philippe, lawyers.

The applicant claims that the Court should:

--annul the Commission's decision of 16 July 2003, imposing a fine of 10.35 million euros on the applicant;

--in the alternative, withdraw the fine or reduce its amount;

--order the Commission to pay the costs.

Pleas in law and main arguments

The applicant, a French limited liability company 99%-owned by Wanadoo S.A., which is in turn owned as to 70.6% by France Telecom, challenges the Commission's decision accusing it of infringing Article 82 of the Treaty by charging predatory prices for its Pack eXtense and Wanadoo ADSL services which did not allow it to cover its variable costs from March to August 2001 or its full costs from August 2001 until 15 October 2002, as part of plan aimed at pre-empting the market for high-output internet access services. On that basis, the Commission imposed a fine on the applicant of 10.35 million euros.

In support of its claims, the applicant argues:

-- Infringement of essential procedural requirements, and in particular of its defence rights, in that the Commission:

-- infringed the principle that violations are to be attributed to the offender only, in that it held against the applicant matters which it imputes to the "France Telecom Group" and on which neither the applicant nor France Telecom were in a position to submit observations. In that respect, the applicant insists that France Telecom and the applicant itself are two distinct legal persons;

-- failed to communicate its final test on the coverage of costs in a statement of objections, and, in its decision, determined a duration of the infringement longer than that mentioned in the statement of objections;

-- gave no reason for abandoning the principle of alignment of prices laid down by the Community case-law.

-- Infringement of Article 82 of the EC Treaty, in that the Commission:

-- gave an incorrect definition of the market, on which the applicant had in any case never held a dominant position;

-- applied an erroneous test on the coverage of costs in place of the only relevant test, which showed that the full costs connected with the services concerned were covered for the whole of the period referred to in the decision;

-- refused the applicant the right to align its prices on those charged by its competitors;

-- committed a serious error of law, exacerbated by obvious errors of assessment, in implementing the test for predatory pricing that it used, particularly by failing to take account of the highly competitive market context;

-- concluded that a predatory pricing plan existed without adducing the necessary evidence.

In the alternative, the applicant claims that the fine should be annulled, or very substantially reduced.

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