Action brought on 4 April 2007 — UPS Europe and UPS Deutschland v Commission

(Case T-100/07)

(2007/C 129/29)

Language of the case: English

Parties

Applicants: UPS Europe NV/SA (Brussels, Belgium) and UPS Deutschland Inc. & Co. OHG (Neuss, Germany) (represented by: T. Ottervanger and E. Henny, lawyers)

Defendant: Commission of the European Communities

Form of order sought

In light of their submissions, the applicants respectfully request the Court:

Pleas in law and main arguments

By means of their application, the applicants initiate an action under Article 232 EC, claiming that the Commission failed to take a definitive decision on their complaint initially filed on 22 April 2004, followed by an invitation to act, lodged on 27 November 2006, with regard to an alleged abuse of dominance by Deutsche Post under Article 82 EC.

The applicants sustain that they have a legitimate interest to bring such a complaint in accordance with the requirement of Article 7(2) of Council Regulation 1/2003 (1) and are directly and individually concerned by the Commission's failure to act. In fact, the applicants claim to be affected by the excessive pricing of Deutsche Post in the downstream market, both as a consumer as well as a competitor.

The applicants further submit that in accordance with the Commission Notice on the handling of complaints under Article 81 and 82 EC (2), the Commission is required, upon receipt of a complaint that Article 82 EC has been infringed, either to initiate a procedure against the subject of the complaint or to adopt a definitive decision rejecting the complaint, after having given the complainant the opportunity to comment. However, the applicants claim that although they have submitted their comments on the preliminary rejection of the complaint within the given time-limit, the Commission did not take any definitive decision, in breach of Community law.

Finally, the applicants contend that, considering the circumstances of the case, the period of approximately three years that has lapsed during which they have repeatedly urged the Commission to take action is sufficiently long to enable it to take a definitive decision. In particular, the period of 18 months that has lapsed since the applicants submitted their final observations, is according to the applicants more than reasonable to enable the Commission to close the third stage of investigation.

(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1-25).

(2)  OJ C 101, 27.4.2004, p. 65-77.