Action brought on 8 July 2004 by Éditions Odile Jacob SAS against the Commission of the European Communities

(Case T-279/04)

(2004/C 262/64)

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 8 July 2004 by Éditions Odile Jacob SAS, established in Paris, represented by Olivier Fréget and Wilko van Weert, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments

By the contested decision, the Commission decided not to oppose the acquisition by Lagardère of control of certain assets of Vivendi Universal Publishing, controlled by Investima, itself controlled by Natexis Banques Populaires, notified to the Commission under Article 4 of Regulation (EEC) No 4064/89 (2) on 14 April 2003, and to declare it compatible with the common market and with the EEA agreement, provided the commitments offered were met.

The applicant, who claims to be directly and individually concerned by the contested decision, having actively participated in the administrative procedure preceding its adoption, seeks the annulment of the decision in question, arguing, first, that the Commission has infringed Regulation No 4064/89. The applicant submits that the bank, Natexis, cannot be covered by the exception laid down in Article 3(5)(a) of that regulation, since it acquired Vivendi Universal Publishing only after giving a commitment to resell that undertaking to Lagardère. Furthermore, the Commission wrongly classified the project in question as the acquisition of total control, when in actual fact it constituted the acquisition of joint control by Lagardère and Natexis, which should have notified it to the Commission jointly under Article 4(2) of Regulation 4064/89.

The applicant maintains also that the Commission infringed Article 6(1) and Article 2(1)(a) of Regulation No 4064/89 by accepting notification of the operation in question more than four months after it took place and by granting Lagardère successive extensions of time which had the effect of postponing the adoption of the decision by nine months. The Commission also committed a manifest error in its assessment of Lagardère's real power.

The applicant further claims that the Commission infringed Article 2 of Regulation No 4064/89 and committed a manifest error of assessment on the ground that the contested decision strengthened Lagardère's dominant position. It also submits that the Commission's acceptance of a divestiture commitment, neither the principle nor the conditions for implementation of which are such as to enable effective competition to be restored, constitutes an infringement of Article 8(2) of Regulation No 4064/89. Finally, the applicant alleges failure to give reasons for the contested decision as regards the effect of that commitment on the structure of the market in its current state.

(1)  OJ L 125 of 28.4.2004, p. 54.

(2)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings OJ L 257/90 p. 13.