Action brought on 29 November 2005 — ENDESA v Commission

(Case T-417/05)

(2006/C 22/38)

Language of the case: Spanish

Parties

Applicant: ENDESA S. A. (represented by: M. Merola, M. Odriozola, S. Baxter and M. Muñoz de Juan, lawyers, J. Flynn, Q. C.)

Defendant: Commission of the European Communities

Applicant's claims

The applicant claims that the Court should annul the Commission Decision of 15 November 2005, Case COMP/M.3986 Gas Natural/Endesa.

Pleas in law and main arguments

The application seeks the annulment of the Commission Decision of 15 November 2005 declaring that the public bid announced on 5 September 2005 by Gas Natural SDG to acquire 100 % of the shares of Endesa S.A. does not result in a concentration with a Community dimension.

The action for annulment against the Commission raises, as a preliminary matter, the existence of several procedural defects. In that regard, the applicant states, first of all, that the contested decision should have been adopted prior to the decision on referral, provided for in Article 22 of the Regulation on concentrations, since it is clear from the wording of that provision itself that decisions relating to requests for a referral must relate to concentrations which comply with the threshold laid down by the laws of one or more countries and which lack a Community dimension.

Second, the applicant criticises the Commission for lack of transparency in the procedure and the resulting infringement of its rights of defence.

Thirdly, the applicant asserts that the Commission should have requested the suspension of the national proceedings that were taking place in parallel before the national authorities. The applicant considers that the fact that such a suspension was not requested in itself presupposes a serious procedural omission in the light of the basic principles of the system of control of concentrations.

As regards the merits, the action raises the infringement of specific articles of Regulation (EC) No 139/2004 (1) and the existence of manifest errors of assessment. Thus, on one hand the Decision infringes, in the applicant's view, the rules of jurisdiction established in the Regulation on concentrations, in trying to shift the burden of proof concerning the definition of the Community dimension onto Endesa, which is manifestly incompatible with the public policy nature of the rules which establish the exclusive competence of the Commission.

Likewise, the applicant maintains that by failing to take into consideration Endesa's consolidated accounts for the last accounting year, which were properly drawn up in accordance with Community accounting criteria (NIC/NIIF) in force at the time when the concentration took place, the Decision infringes Article 5 of the Regulation on concentrations by departing from the Commission's practice and conflicting with the principles set out in the Notice on calculation of turnover.

The applicant adds that in relation to the adjustments, which the Decision examines in the light of the Notice on calculation of turnover, a number of those adjustments comply with the strict application of the Community accounting criteria in force and they should not be confused with adjustments in accordance with Article 5 of the Regulation on concentrations. In any event, all the adjustments which are examined in the Decision should be recognised as fulfilling the objective of determining the real economic value of the undertakings which are the subject of the concentration.

Lastly, the applicant submits that the Decision, by incorrectly defining the exclusive competence of the Commission, infringes the principle of legal certainty and is contrary to the uniform application of the Regulation on concentrations.

(1)  OJ L 24, of 29.1.2004, p. 1.