Action brought on 25 May 2009 - Abertis Infraestructuras v Commission

(Case T-200/09)

Language of the case: Spanish

Parties

Applicant: Abertis Infraestructuras SA (Barcelona, Spain) (represented by: M. Roca Junyent and P. Callol García, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annulment of the contested decision, an order that the Commission pay the costs and any other appropriate order in law.

Pleas in law and main arguments

The measure against which this action is brought is the same as in Case T-58/09 Schemaventotto v Commission (OJ 2009 C 82, p. 34); namely, the legal act by virtue of which the European Commission closed proceedings under Article 21 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) ('RCC') relating to control of the concentration between the applicant and Autostrade S.p.A. (Case COMP/M. 4388 - Abertis/Autostrade).

In support of its action, the applicant claims that:

The European Commission failed to fulfil its legal obligations by closing proceedings commenced under Article 21, without stating that infringements committed by Italy had harmed the rights of Abertis; and, in the alternative, the Commission erred in its analysis of compatibility with Community law and thereby failed to fulfil its obligations under Article 21 RCC.

The Commission disregarded the essential procedural requirements established in Article 21 RCC. That infringement invalidates the Commission's acts, by preventing full achievement of the objectives of Article 21 RCC.

The Commission infringed the obligation to state the reasons for its acts.

The Commission misused its powers because it issued a decision pursuant to a provision, Article 21 RCC, which did not permit it to issue that decision, which is within the scope of Article 226 EC, and thereby rendered nugatory the safeguards of Article 21 RCC, deprived Article 21 RCC of effectiveness and denied protection to the proposed concentration which the Commission itself had previously approved.

The Commission infringed the general principles of legal certainty, good administration and the protection of legitimate expectations by failing to take action against the Member State, in circumstances where it had no discretion, thereby damaging the confidence of traders.

Lastly, and in the alternative, the applicant claims that the Commission erred in its analysis of the new regulatory framework introduced by the Italian Republic given that there has not been established a regulatory framework which ensures that, in any future cross-border mergers within the motorways sector in Italy, undertakings receive equal treatment in accordance with the rules of Community law.

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