Action brought on 15 March 2006 - Lebard v Commission

(Case T-89/06)

Language of the case: French

Parties

Applicant: Daniel Lebard (Brussels, Belgium) (represented by: de Guillenschmidt, lawyer)

Defendant: Commission of the European Communities

Form of order sought

annul the decision set out in the letter of 16 January 2006 addressed to Mr Lebard, dismissing the application for withdrawal of Decision IV/M.1517 in the name of the Commission;

annul, as a consequence, the Commission's decision to close the file on the concentrations between Rhodia and Albright & Wilson and de Hoechst and Rhône-Poulenc to the extent that these transactions are interlinked;

as a result, declare that Decision IV/M.1378 of 2004 is also void;

order the Commission to pay Mr Lebard the sum of one euro for the harm caused to him, to have the judgment of the Court of First Instance containing the order published at its own cost in newspapers chosen by the applicant and to pay all the costs.

Pleas in law and main arguments

By decision No IV/M.1517 of July 1999, the Commission authorised a concentration under which Rhodia SA was to take full control of the company Albright & Wilson, of which the applicant was chairman between 28 July 1999 and 14 October 1999. By Decision No IV/M.1378 of 9 August 1999, the Commission also authorised the concentration between the undertakings Hoechst and Rhône-Poulenc, the latter having a controlling interest in Rhodia of 67.35%. Certain commitments relating to Rhodia (sale of Rhône-Poulenc's interest in Rhodia, maintenance of independent management of the two undertakings) were entered into by Rhône-Poulenc and attached to Decision No IV/M.1378 to ensure that the transactions would not have an adverse effect on competition. The applicant sent the Commission several letters informing it that the commitments entered into in respect of Case IV/M.1378 had allegedly not been complied with and requesting that Decision No IV/M.1517 be withdrawn. In its reply of 7 October 2005, the Commission stated that it did not envisage bringing any action on the basis of the facts brought to its knowledge by the applicant and that it had decided to close the file. In response to the applicant's letter, the Cabinet of the President of the Commission sent the applicant a letter dated 16 January 2006 confirming its earlier position as that set out in the letter of 7 October 2005, namely the rejection of the application to withdraw the Commission's decision in Case IV/M.1517. The present action for annulment is directed against the alleged decision contained in the Commission's letter of 16 January 2006.

In support of its action, the applicant puts forward several pleas.

First, for the purposes of admissibility of his action, the applicant purports to have a direct interest in bringing proceedings as recipient of the contested letter causing him direct and individual harm. He further contends that the letter of 16 January 2006, which is the subject of the present action, cannot be considered to be an act that simply confirms the letter of 7 October 2005 on the ground that a new element has since arisen which is likely to bring about a substantial change in the circumstances and conditions governing the adoption of the former measure for the purposes of Community case-law. The applicant thereby refers to a letter from Mrs Kroes of 12 January 2006 addressed to the Members of the European Parliament concerning the concentrations in question.

Second, the applicant puts forward pleas in support of the forms of order sought on the merits. In the first, alleging a breach of the substantive and procedural rules in the field of competition, he criticises the Commission for not re-examining the file and not using its power to withdraw its earlier decision. In the second, he alleges that the Commission has misused its powers by failing to maintain tight control over the concentrations, authorised in advance, in the course of their implementation.

Finally, the applicant puts forward a plea based on judicial protection which, he contends, is owed to the parties to a concentration and in particular to the directors of an undertaking involved in a concentration.

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