Notice for the OJ

 

Action brought on 10 February 2003 by Schneider Electric S.A. against Commission of the European Communities

    (Case T-48/03)

    (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 10 February 2003 by Schneider Electric S.A., whose registered office is at Rueil-Malmaison (France), represented by Antoine Winckler and Marc Pittie, lawyers.

The applicant claims that the Court should:

( annul all the provisions of the Commission decision of 4 December 2002 based on Article 6(1)(c) of Council Regulation (EEC) No 4064/89 (Case COMP/M.2283 Schneider/Legrand);

( annul all the provisions of the Commission decision of 13 December 2002 whereby the Commission closed Case COMP/M.2283 Schneider/Legrand;

( order production of the market studies carried out in November 2002 in the context of Case COMP/M.2283;

( order the Commission to produce, on the assumption that they exist, the minutes of the meeting of the Commission at which the decision to close the case was adopted and the decision delegating a power of signature to the Director-General for Competition and authorising him to sign the decision closing the case;

( order the Commission to reimburse the costs incurred in connection with the present actions.

Pleas in law and main arguments

On 10 October 2001, the Commission adopted a decision declaring Schneider's public exchange offer in respect of all the shares in Legrand held by the public to be incompatible with the common market. ¹ As Schneider had closed its public offer before that decision was taken, the Commission adopted a further decision of 30 January 2002 ordering Schneider to divest itself of Legrand. The applicant challenged both these decisions in Cases T-301/01 and T-77/02. The Court of First Instance annulled the decisions by judgment of 22 October 2002.

On 4 December 2002, the Commission adopted a decision to initiate proceedings, after declaring that the concentration raised serious doubts as to its compatibility with the common market and opened the second phase investigation. The applicant subsequently informed the Commission that as it had divested itself of Legrand, on 10 December, the proceedings had become devoid of purpose. On 13 December 2002, the Commission closed the file. ²

In the present case, the applicant challenges the Commission decisions of 4 and 13 December 2002. The applicant states that the true effect of the decisions is to prohibit irremediably the union between Schneider and Legrand. In light of the obligation to implement the divestiture decision in good faith and the fact that it was impossible to secure provision by financial investors of the amounts necessary for an additional period in excess of four months, the deadline for disposing of Legrand was set at 5 December 2002. According to the applicant, these economic consequences and the obligation to comply in good faith with the judgments of the Court of First Instance meant that the Commission was required to pay particular attention when resuming the investigation of the case.

In support of its action, the applicant claims, first, that the Commission did give effect to the judgment of the Court of First Instance in Case T-310/01. The applicant states that the Commission resumed the proceedings at "stage I", whereas the Court of First Instance had held that its examination should be recommenced at the stage at which the Commission had committed its procedural error, i.e. at the time of communicating the statement of objections.

Second, the applicant claims that there has been a breach of its rights of defence. It maintains that the Commission did not communicate the objections which it intended to use against it within the prescribed period and with the clarity which would give it the proper opportunity to submit corrective measures. The applicant further states that the Commission refused to grant any access to the results of the market studies which it carried out for the purpose of evaluating the scope of the corrective measures proposed by the applicant.

Third, the applicant claims that there has been an infringement of the principle of good administration, in that the Commission distorted the corrective measures in the questionnaire drawn up for the purpose of the market studies and did not take into account certain factual matters which qualified the results.

Fourth, the applicant relies on a number of errors of law and of manifest errors of assessment. The applicant claims that the Commission ignored the consequences of its decisions by stating that serious doubts still existed concerning the compatibility of the operation with the common market. According to the applicant, the Commission therefore failed, contrary to the second paragraph of Regulation No 4064/89 ³ and to the judgment of the Court of First Instance, to adopt a definitive position. Furthermore, the Commission is also alleged to have applied a stricter standard of proof to the facts in issue than that laid down in Article 2(2) of Regulation No 4064/89.

The applicant further claims that the Commission at no time approached the level of proof required to demonstrate the effects of a conglomerate of this type.

Last, the applicant states that the Commission made errors of law and errors of assessment when analysing the corrective measures proposed by the applicant. Thus, the Commission rejected those measures by making its assessment subordinate to that of a national court and by waiving its exclusive power to control concentrations of a Community dimension.

The applicant also claims that the Commission made a manifest error of assessment in considering that the corrective measures proposed were insufficient in the light of the allegedly inadequate industrial viability of the undertakings disposed of. In addition, it claims that the Commission infringed the principle of proportionality by refusing to take into account the potential acquirers of the shares disposed of and an alternative proposal to dispose of a significant shareholding. Last, the applicant claims that the Commission infringed Regulation No 4064/89 by refusing to analyse the applicant's undertakings as to conduct.

Last, the applicant claims that the decision to close the proceedings is vitiated by an error of law, since it has no legal basis in Regulation No 4064/89 or in any other principle of law. In that regard, the applicant also relies on an infringement of the principle of collegiality of the Commission.

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¹ - Case COMP/M.2283 ( Schneider/Legrand.

² - Initiation of proceedings and abandonment of the planned concentration (Case COMP/M.2283 ( Schneider/Legrand II) (Text with EEA relevance) (OJ 2003 C 29, p. 5).

³ - Council Regulation (EEC) No 4064/89/EEC of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).