Notice for the OJ

 

Action brought on 21 May 2003 by Auna Operadores de Telecomunicaciones, S.A., Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León, S.A. Euskaltel, S.A., Telecable de Asturias, S.A. (a company arising from the merger between Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and Telecable de Gijón, S.A.), R. Cable y Telecomunicaciones Galicia, S.A. and Tenaria, S.A. against Commission of the European Communities

    (Case T-180/03)

    (Language of the case: Spanish)

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 May 2003 by Auna Operadores de Telecomunicaciones, S.A., whose registered office is in Barcelona (Spain) represented by Antonio Creus Carreras and Natalia Lacalle Mangas, lawyers, Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León, S.A. whose registered office is in Boecilli, Valladolid (Spain) Euskaltel, S.A., whose registered office is in Zamudio, Bizkaia (Spain) Telecable de Asturias, S.A. (a company arising from the merger between Telecable de Avilés, S.A., Telecable de Oviedo, S.A. and Telecable de Gijón, S.A.), whose registered office is in Oviedo (Spain), R. Cable y Telecomunicaciones Galicia, S.A., whose registered office is in A Coruña (Spain), and Tenaria, S.A., whose registered office is in Cordovilla, Navarra (Spain) represented by José Mª Jiménez Laiglesia, lawyer.

The applicants claim that the Court should:

(annul the decisions of the Commission of 14 March 2003 in so far as the Commission took the view that the agreement of 29 January 2003 did not give rise to a new concentration;

(order the Commission to pay the entire costs of the proceedings.

Pleas in law and main arguments

The applicants in the present action are contesting the decisions of 14 March 2003 by which the Commission decided to take no further action on the complaints lodged by them against an agreement between the companies Sogecable and Telefónica on 29 January 2003 which, in their view, gives rise to a new concentration by comparison with the concentration previously notified on 3 July 2002, which was referred to the national authorities by decision of 14 August 2002. ¹

According to the applicants, the abovementioned agreement of 20 January 2003 envisages the possibility, which had initially been discarded, that Telefónica's final share of Sogecable's capital (23%) should be greater than the share held by the company's reference partners. The agreement also provides that Telefónica will waive certain rights affecting questions of policy arising from the major shareholding of those assets by Prisa and Groupe Canal+. On the other hand, Telefónica would remain a shareholder in Sogecable with effect from the implementation of the concentration operation. Furthermore, with the purpose of assisting the integration of their platforms, Prisa, Groupe Canal+ and Telefónica each agreed to provide Sogecable with a loan with profit participation amounting to EUR 50 million repayable in 10 years. It was also agreed that Sogecable would offer its shareholders the option of participating in a subordinated loan of EUR 175 million, to be underwritten in its entirety by Telefónica. Finally, the parties agreed that neither of their debts should exceed, prior to the concentration, EUR 425 million and 705 million respectively, with a maximum limit of EUR 1 130 million.

In support of their claims, the applicants allege that the contested decisions contain manifest errors of assessment of the facts complained of. They also take the view that the Commission has been negligent inasmuch as it did not fully analyse the facts. Moreover, the defendant's assessment also infringes the principle of equality in that it diverges from previous decisions in which it was held that it was necessary to submit a new notification.

Finally, the applicant companies allege that the Commission misused its powers.

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¹ - (Case T-346/02 Cableuropa and Others (OJ 2002 C 19, p. 40) and Case T-347/02 Aunacable and Others (OJ 2002 C 19, p. 40)