SELEX v Commission [2006] EUECJ T-155/04

Court of First Instance judgment (about 20 pages) confirming a finding by the European Commission that Eurocontrol is not acting as an undertaking for the purposes of Article 82 (i.e. performing economic activities) when acting as a standardisation authority or financing research and development.

The case was brought by a supplier aggrieved by Eurocontrol's policies towards intellectual property rights issues, which it alleged led to monopolies in the production of systems which are subsequently standardised by Eurocontrol, and to an unfair advantage to undertakings supplying prototypes used for the purposes of standardisation. The court considered that the principles in Fenin could be applied to the case.

The judgment also confirms that the Court of Justice's finding in Case C-364/92 SAT Fluggesellschaft that Eurocontrol was not acting as an undertaking must be read as restricted to the activities at issue in that case, which the CFI describes as "the creation and collection of route charges on behalf of the Contracting States from users of air navigation services". The Commission has sought to read it as of wider application, as had advisers to the UK CAA in 2004 (but the CAA did not endorse that advice in its competition law enforcement guidance). Thus the CFI found that Eurocontrol was acting as an undertaking when providing assistance to the national air traffic control administrations — although that did not help SELEX's case because Eurocontrol's assistance activities did not cause the alleged exclusion or discrimination between suppliers.

For further information or advice please contact Franck Latrémolière.

Filed under Article 82, ECJ/CFI, Economic activity.

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