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

(Case T-452/04)

(2005/C 45/55)

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

The applicant claims that the Court should:

Pleas in law and main arguments:

The applicant contests the Commission Decision of 30 July 2004 concerning the approval of Wendel Investissement as the acquirer of the assets sold by Lagardère, in accordance with the Commission Decision of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (1) (‘the Compatibility Decision’). The concentration was authorised subject to the sale by Lagardère of certain assets, namely Editis. The applicant submitted an offer to purchase Editis but was unsuccessful.

In support of its action the applicant claims, in the first place, that the contested decision was adopted on the basis of the report of a trustee who was not appointed in accordance with the conditions laid down by paragraph 15 of Annex II to the Compatibility Decision. The applicant argues that the trustee in question was not independent, particularly of Editis, contrary to the duty incumbent on Lagardère in consequence of the Compatibility Decision.

Second, the applicant claims that the Commission failed in its duty to supervise the sale of Editis, allowing a selection procedure for purchasers to be put in place which was discriminatory and anti-competitive. According to the applicant, the Commission should have required the organisation of a call for prospective purchasers which was transparent, objective and non-discriminatory. Furthermore, the Commission should not have approved the terms of the confidentiality agreement between Lagardère and the potential purchasers, which included the applicant, preventing them from bringing an action. The Commission should have taken steps to rectify the procedure when the applicant drew its attention to the failures to comply with the competition rules in the EC Treaty. Finally, the Commission denied the applicant the minimum protection to which it considered it was entitled as an interested third party.

Third, the applicant relies on a manifest error by the Commission in its assessment of whether the conditions laid down in respect of the purchaser by the Compatibility Decision were complied with. The applicant argues that the purchaser is not an operator capable of restoring a situation of effective competition.

Finally, the applicant relies on a breach of the duty to state reasons.

(1)  Case COMP/M.2978 – Lagardère/Natexis/VUP (OJ 2004 L 125, p. 54)