Notice for the OJ

 

Action brought on 23 April 2003 by Festival Crociere SpA against the Commission of the European Communities

    (Case T-145/03)

    Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 April 2003 by Festival Crociere SpA, represented by Professor G.M. Roberti, G. Bellitti and I. Perego, lawyers.

The applicant claims that the Court should:

(annul the contested decision;

(order the Commission to pay the costs.

Pleas in law and main arguments

By this action the applicant company challenges the Commission's Decision of 10 February 2003 authorising, pursuant to Article 6(1)(b) of Regulation (EEC) No 4064/89, a concentration between Carnival Cruises and P&O Princess II.

In support of its claims the applicant submits:

(first, that the Commission has not correctly appraised the new corporate structure arising from the merger or its economic and financial implications. The Commission should have found that the structure of the dual-listed company was, of itself, capable of conferring very significant competitive advantages on Carnival, including advantages in terms of financial strength, likely to give it overwhelming power on the market such that other operators would no longer be able to compete. From this point of view the decision appears to be vitiated by a manifest error of assessment, as well as an inadequate statement of reasons in that the Commission failed to consider an essential fact which must be taken into account in order properly to evaluate the competition aspects of the concentration. Had that fact been properly examined, it would necessarily have led the Commission to prohibit the concentration or, at least, to initiate an in-depth enquiry under Article 6(1)(c) of Regulation No 4064/89;

(second, that the Commission has not correctly assessed certain specific economic factors mentioned in Paragraph 11 of the decision, concerning in particular: continued competition from other operators, prospects of growth in the market, barriers to entry and the real prospects of competing with Carnival/P&O's dominance in the market. The Commission not only failed to base its conclusions on a coherent objective justification, but also failed to appraise, as is essential in this case, the effects of the new financial structure of the dual-listed company with reference to the main competitive factors. Had the Commission properly analysed these, it would not have confined itself to referring, without further reflection, to the first decision, but would have reconsidered the assessments made at the time of the first decision, or at least commenced an in-depth enquiry.

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