Action brought on 18 May 2006 — Omya v Commission

(Case T-145/06)

(2006/C 165/64)

Language of the case: English

Parties

Applicant: Omya AG (Oftringen, Switzerland) (represented by: C. Ahlborn, C. Berg, Solicitors, C. Pinto Correira, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The applicant seeks annulment of the Commission's Decision C (2006)795 of 8 March 2006 in merger case COMP/M.3796 according to which the applicant pursuant to Article 11(3) of the EC Merger Regulation (1) is requested to supply the Commission with correct and complete information concerning the applicant's take over of the precipitated calcium carbonate business from J.M. Huber Corporation (‘the contested decision’). As a result of the contested decision, the merger timetable was suspended prolonging the deadline for a final decision on the notified concentration from 31 March 2006 to 28 June 2006.

The Commission states in the contested decision that, in response to an earlier information request, the applicant had provided at least in part incorrect information. The applicant claims that this stands in contradiction to a previous letter from the Commission in which the Commission acknowledged that the complete information had been provided.

In support of its application, the applicant invokes an infringement of Article 11(1) and (3) of the EC Merger Regulation because (i) the information requested by the contested decision was not necessary for the assessment of the concentration, (ii) the requested information had been provided in full earlier, and (iii) contrary to the principle of legal certainty, the Commission did not act without delay.

The applicant further submits that the contested decision constitutes a misuse of the powers of the Commission under Article 11(3) of the EC Merger Regulation as the Commission's main goal in adopting the contested decision, according to the applicant, was to obtain an extension of the time limits under the EC Merger Regulation, rather than the collection of necessary information.

Finally, the applicant alleges that the contested decision is in breach of the legitimate expectation of the applicant that it had discharged its obligation to provide the requested information and that the deadline for a final decision on the notified concentration was 31 March 2006. The applicant states that this expectation arose from the Commission's previous letter in which it acknowledged that the complete information had been provided and from the Commission's subsequent conduct.

(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).