Judgments nº T-212/03 of Court of First Instance of the European Communities, September 09, 2008

• Resolution Date: September 09, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-212/03

In Case T-212/03,

MyTravel Group plc, established in Rochdale, Lancashire (United Kingdom), represented by D. Pannick, QC, M. Nicholson and S. Cardell, Solicitors, A. Lewis, Barrister, and R. Gillis, QC,

applicant,

v

Commission of the European Communities, represented initially by R. Lyal, A. Whelan and P. Hellström, and subsequently by R. Lyal and F. Arbault, acting as Agents,

defendant,

supported by

Federal Republic of Germany, represented by W.-D. Plessing and M. Lumma, acting as Agents,

intervener,

APPLICATION for damages for the loss allegedly suffered by the applicant by reason of the unlawfulness of the proceedings for determining whether the concentration between the applicant and First Choice plc was compatible with the common market,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),

composed of J. Azizi, President, J.D. Cooke, E. Cremona, I. Labucka and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: C. Kantza, Administrator,

having regard to the written procedure and further to the hearing on 29 April and 20 May 2008,

gives the following

Judgment

Facts

1 On 29 April 1999, the applicant, the United Kingdom travel company Airtours plc, which has since been renamed MyTravel Group plc, announced its intention to acquire the whole of the issued share capital of First Choice plc, one of its competitors in the United Kingdom, on the stock market. On the same date, the applicant notified the proposed concentration to the Commission with a view to obtaining an approval decision on the basis of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (corrected version OJ 1990 L 257, p. 13), as amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1).

2 By decision of 3 June 1999, the Commission found that the concentration gave rise to serious doubts as to its compatibility with the common market and decided to initiate detailed investigation proceedings in accordance with Article 6(1)(c) of Regulation No 4064/89.

3 On 9 July 1999, the Commission sent the applicant a statement of objections under Article 18 of Regulation No 4064/89, in which it set out the reasons for which it took the preliminary view that the proposed concentration would create a collective dominant position on the United Kingdom short-haul foreign package holiday market. The applicant replied to the statement of objections on 25 July 1999.

4 On 6 September 1999, the Commission sought the opinion of interested third parties on a set of proposed commitments submitted by the applicant, which were formalised by the latter on 7 September 1999. The third parties concerned had until 8 September 1999 to reply and their replies did not allay the Commission-s concerns.

5 On 9 September 1999, the majority of the members of the Advisory Committee on concentrations decided that the commitments proposed by the applicant would not allay the competition concerns identified at that stage by the Commission.

6 The commitments referred to above were submitted within the period of three months from the date on which the detailed investigation proceedings were initiated, laid down by Article 18(2) of Commission Regulation (EC) No 447/98 of 1 March 1998 on the notifications, time-limits and hearings provided for in Regulation No 4064/89 (OJ 1998 L 61, p. 1) in order to allow the undertakings concerned to submit the commitments to the Commission that they would wish to have taken into account in a decision based on Article 8(2) of Regulation No 4064/89. That three-month period ended on 7 September 1999.

7 On 14 September 1999, the applicant sent a new set of commitments, based on the previous version. A meeting was held at the Commission on 15 September 1999 to discuss those proposals, following which the applicant submitted a firm set of revised commitments to the Commission.

8 On 16 September 1999, the applicant requested an extension to the three-month period laid down by Article 18(2) of Regulation No 447/98, which may, in exceptional circumstances, be granted by the Commission. In the present case, the applicant put forward three exceptional circumstances to justify such an extension: (i) the difficulties in finding an appropriate alternative; (ii) the fact that it had entered into constructive dialogue during the administrative procedure; and (iii) the change of Commission at that time.

9 On 22 September 1999, that is to say, 15 days before the end of the period of four months from the date of the initiation of the detailed investigation proceedings laid down by Article 10(3) of Regulation No 4064/89 as being the maximum period for adopting a decision under Article 8(3) of Regulation No 4064/89 - which ended on 5 October 1999 - the Commission declared the concentration incompatible with the common market and with the EEA Agreement by Decision 2000/276/EC (Case IV/M.1524 - Airtours/First Choice) (OJ 2000 L 93, p. 1) (-the Airtours decision-).

10 The Commission stated in recital 193 of the Airtours decision that the applicant had submitted commitments at a very late stage in the proceedings (15 September 1999). It also stated that there was nothing in those commitments which the applicant could not have included in a commitment submitted within the three-month period laid down by Article 18(2) of Regulation No 447/98, that the applicant had not put forward any reasons which could be regarded as constituting -exceptional circumstances- that might reopen the three-month period for the purposes of that provision and that the Commission did not have sufficient time available in which to examine those commitments effectively.

11 The applicant brought an action for the annulment of the Airtours decision. By judgment of 6 June 2002 in Case T-342/99 Airtours v Commission [2002] ECR II-2585, the Court of First Instance annulled that decision, declaring the third plea, which related to the lawfulness of the Commission-s assessment of the effects of the Airtours/First Choice concentration on competition in the common market, to be well founded, without it being necessary to examine the fourth plea, which concerned the lawfulness of the Commission-s assessment of the commitments submitted during the administrative procedure.

Procedure and forms of order sought

12 By application lodged on 18 June 2003, the applicant brought the present action.

13 By decision of 22 July 2003, the case was assigned to a chamber sitting in extended composition.

14 By order of 13 November 2003, the Federal Republic of Germany was granted leave to intervene in the proceedings in support of the form of order sought by the Commission.

15 By letter of 22 March 2004, the Commission requested the Court to order the applicant to guarantee its potential liability to pay the costs incurred by the Commission to the extent of EUR 1.5 million. The Court informed the Commission that there was no legal basis for such a guarantee.

16 By letter of 14 July 2004, the applicant requested the Court to adopt measures of organisation of procedure directing that the applicant be furnished with the report of the working group established by the Commission to assess the implications of Airtours v Commission, together with the documents referred to in that report. By letter of 9 December 2004, the Commission submitted its observations on that request, indicating that those documents could be the subject of a request made under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

17 Following that request for access to documents, the applicant once again requested the Court, by letter of 9 January 2006, to adopt measures of organisation of procedure in the present action so as to order, in particular, disclosure by the Commission of the report of the working group and of documents relating to that report. In that letter, the applicant also proposed to limit the damages which it sought to the period of three years between the Airtours decision and Airtours v Commission. By letter of 17 February 2006, the Commission submitted its observations on that request.

18 At the same time, by decisions of 5 September and 12 October 2005, the Commission refused to grant the applicant access under Regulation No 1049/2001 to certain preparatory documents to the Airtours decision and to documents prepared by its services following the annulment of that decision by Airtours v Commission. The applicant brought an action for the annulment of those decisions (Case T-403/05 MyTravel Group v Commission).

19 On hearing the report of the Judge-Rapporteur, the Court (Third Chamber, Extended Composition) decided to open the oral procedure, and, by way of measures of organisation of procedure, the parties were invited to reply to a number of questions.

20 By letter from the Federal Republic of Germany of 25 February 2008 and by letters from the applicant and the Commission of 14 March 2008, the parties submitted their replies to the questions put by the Court.

21 The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 29 April and 20 May 2008.

22 At the hearing on 29 April 2008, the Court ordered the Commission, in accordance with Article 65(b) and the third subparagraph of Article 67(3) of the Rules of Procedure of the Court of First Instance, to produce all the documents in its possession relating to the evaluation of the commitments submitted on 15 September 1999 drawn up between that date and the date on which the Airtours decision was adopted, namely 22 September 1999.

23 The Commission complied with that request by producing two documents at the hearing on 29 April 2008 and a number of other documents subsequent to that hearing.

24 Within the period laid down for that purpose by the Court, the...