Action brought on 22 October 2010 — RTI and Elettronica Industriale v Commission

(Case T-506/10)

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2010/C 346/109

Language of the case: English

Parties

Applicants: Reti Televisive Italiane SpA (RTI) and Elettronica Industriale SpA (Lissonne, Italy) (represented by: J.-F. Bellis and S. Bariatti, lawyers)

Defendant: European Commission

Form of order sought

Pleas in law and main arguments

By means of the present application, the applicants seek the annulment of the Commission decision C(2010) 4976 final of 20 July 2010 modifying the application of the commitments attached to a decision C(2003) 1082 final of 2 April 2003 declaring the operation whereby the News Corporation Limited (“Newscorp”) acquired control of the whole of the undertakings Telepiù Spa and Stream Spa compatible with the common market and with the EEA Agreement, subject to full compliance by the Newscorp with the commitments (Case No COMP/M.2876 — Newscorp/Telepiù) (1).

The applicants put forward three pleas in law in support of their claims.

First, they argue that the Commission has committed a manifest error of assessment in finding that, since the adoption of the decision of 2 April 2003, (the “Clearance Decision”), conditions in the Italian pay-TV market have changed to such an extent that a revision of the commitments annexed to the Clearance Decision could be warranted and, as a result, has misapplied the Notice on remedies and Article 8(2) of the Merger Regulation (2). The applicants submit that there is clear evidence that the market circumstances on the basis of which the commitments were accepted in 2003 have neither changed significantly nor on a permanent basis. Notably, Sky Italia, the Italian subsidiary of Newscorp, still enjoys a position of super-dominance in the Italian pay-TV market.

Second, the applicants contend that the Commission has committed an error of law, a manifest error of assessment and a violation of the principle of proportionality in acceding to the request for revision of the commitments presented by Sky Italia and accepting the new commitments proposed by Newscorp, on the assumption that Sky Italia’s inability to take part in the forthcoming selection procedure for digital terrestrial television capacity to be carried out in the coming months in Italy would prevent Sky Italia from operating in the free-to-air television sector. In fact, Sky Italia is already active in the Italian free-to-air television sector and has access to digital terrestrial broadcasting capacity even without taking part in the selection procedure.

Third, the applicants claim that the Commission has committed a manifest error of assessment and an error of law by adopting the contested decision and acceding to the request for revision of the commitments presented by Sky Italia despite the fact that, as a result of the market investigation carried out during the administrative proceedings, most parties — including the Italian Competition Authority and the Italian Communications Authority — expressed serious concerns as to the impact of the proposed revision on the Italian pay-TV market.

(1)  JO 2004 L 110, p. 73

(2)  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