# C_2014282EN.01002001.xml

| 25.8.2014 | EN | Official Journal of the European Union | C 282/20 |
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25.8.2014

EN

Official Journal of the European Union

C 282/20

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Appeal brought on 30 May 2014 by Buzzi Unicem SpA against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-297/11, Buzzi Unicem SpA v European Commission

(Case C-267/14 P)

2014/C 282/26

Language of the case: Italian

Parties

Parties

Appellant: Buzzi Unicem SpA (represented by: C. Osti, A. Prastaro and A. Sodano, avvocati)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should set aside in whole or in part the judgment under appeal and, consequently:

| — | annul the contested decision in its entirety for failure to state reasons, or to state adequate reasons, and for the consequent infringement of the appellant’s rights of defence and the principle of due process; |
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annul the contested decision in its entirety for failure to state reasons, or to state adequate reasons, and for the consequent infringement of the appellant’s rights of defence and the principle of due process;

| — | annul the contested decision in its entirety for excess and abuse of powers and for the consequent reversal of the burden of proof; |
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annul the contested decision in its entirety for excess and abuse of powers and for the consequent reversal of the burden of proof;

| — | annul the contested decision, in whole or in part, as being ultra vires with respect to the powers conferred on the Commission under Article 18 [of Regulation No 1/2003]; and for breach of the principles of proportionality and due process, and failure to hear argument on an inter partes basis, in breach of the Commission’s ‘Best Practices’; |
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annul the contested decision, in whole or in part, as being ultra vires with respect to the powers conferred on the Commission under Article 18 [of Regulation No 1/2003]; and for breach of the principles of proportionality and due process, and failure to hear argument on an inter partes basis, in breach of the Commission’s ‘Best Practices’;

ultra vires

inter partes

| — | set aside the judgment under appeal in so far as Buzzi Unicem is ordered to pay the costs of the proceedings at first instance; |
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set aside the judgment under appeal in so far as Buzzi Unicem is ordered to pay the costs of the proceedings at first instance;

| — | order the Commission to pay the costs of the present proceedings in addition to those relating to Case T-297/11. |
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order the Commission to pay the costs of the present proceedings in addition to those relating to Case T-297/11.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| A. | First ground of appeal, alleging error of law; failure to state grounds or to state adequate grounds; infringement of the rights of the defence; and breach of the principle of due process
  By its first ground of appeal, Buzzi Unicem submits that the judgment under appeal is vitiated by error of law, and failure to state grounds or to state adequate grounds, in so far as it finds that the generic reference, in the decision opening infringement proceedings, to presumed infringements is adequate reason for a request for information under Article 18(3), incorporating the ‘minimum degree of clarity’ required by the provision as regards the subject-matter and purpose of the request. |
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A.

First ground of appeal, alleging error of law; failure to state grounds or to state adequate grounds; infringement of the rights of the defence; and breach of the principle of due process

By its first ground of appeal, Buzzi Unicem submits that the judgment under appeal is vitiated by error of law, and failure to state grounds or to state adequate grounds, in so far as it finds that the generic reference, in the decision opening infringement proceedings, to presumed infringements is adequate reason for a request for information under Article 18(3), incorporating the ‘minimum degree of clarity’ required by the provision as regards the subject-matter and purpose of the request.

| B. | Second ground of appeal, alleging manifest error of assessment and error of law in relation to the plea that the Commission exceeded and abused its powers, and the consequent reversal of the burden of proof
  By its second ground of appeal, Buzzi Unicem submits that the General Court made a manifest error of assessment and of law by rejecting the complaint relating to the abuse of powers by the Commission in requesting information under Article 18 of Regulation No 1/2003 (1) despite the lack of any evidence of an infringement, in so far as the General Court held that Buzzi Unicem did not make an express and reasoned application enabling the question whether there was sufficient evidence to be determined and in so far as, without stating any grounds, the General Court rejected the complaint concerning the reversal of the burden of proof. |
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B.

Second ground of appeal, alleging manifest error of assessment and error of law in relation to the plea that the Commission exceeded and abused its powers, and the consequent reversal of the burden of proof

By its second ground of appeal, Buzzi Unicem submits that the General Court made a manifest error of assessment and of law by rejecting the complaint relating to the abuse of powers by the Commission in requesting information under Article 18 of Regulation No 1/2003 (1) despite the lack of any evidence of an infringement, in so far as the General Court held that Buzzi Unicem did not make an express and reasoned application enabling the question whether there was sufficient evidence to be determined and in so far as, without stating any grounds, the General Court rejected the complaint concerning the reversal of the burden of proof.

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| C. | Third ground of appeal, alleging error of fact and of law, and an illogical statement of grounds, in relation to the plea that the Commission had exceeded its powers under Article 18 of Regulation No 1/2003
  By its third ground of appeal, Buzzi Unicem alleges misapplication of the principles relating to the duties of cooperation incumbent upon undertakings, in so far as the General Court held that the Commission had correctly required the undertakings to respond not merely to factual questions but with information that the Commission knew was not available to the undertaking and with additional information that the Commission could have obtained independently. |
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C.

Third ground of appeal, alleging error of fact and of law, and an illogical statement of grounds, in relation to the plea that the Commission had exceeded its powers under Article 18 of Regulation No 1/2003

By its third ground of appeal, Buzzi Unicem alleges misapplication of the principles relating to the duties of cooperation incumbent upon undertakings, in so far as the General Court held that the Commission had correctly required the undertakings to respond not merely to factual questions but with information that the Commission knew was not available to the undertaking and with additional information that the Commission could have obtained independently.

| D. | Fourth ground of appeal, alleging error of law and failure to state adequate grounds in relation to the complaints alleging breach of the principle of proportionality and excess of powers in respect of Article 18 of Regulation No 1/2003
  By its fourth ground of appeal, Buzzi Unicem submits that the judgment under appeal is vitiated by a failure to state grounds or to state adequate grounds, and by error of law, in relation to the breach of the principle of proportionality and the ensuing excessive burden on the parties resulting from the requests for information, from the reiteration and reformulation of those requests, from the proposal of new variables and the putting of new questions, from the refusal to limit the information to be furnished, from the choice also to request, by decision, information which had already been provided earlier. |
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D.

Fourth ground of appeal, alleging error of law and failure to state adequate grounds in relation to the complaints alleging breach of the principle of proportionality and excess of powers in respect of Article 18 of Regulation No 1/2003

By its fourth ground of appeal, Buzzi Unicem submits that the judgment under appeal is vitiated by a failure to state grounds or to state adequate grounds, and by error of law, in relation to the breach of the principle of proportionality and the ensuing excessive burden on the parties resulting from the requests for information, from the reiteration and reformulation of those requests, from the proposal of new variables and the putting of new questions, from the refusal to limit the information to be furnished, from the choice also to request, by decision, information which had already been provided earlier.

| E. | Fifth ground of appeal, alleging error of law and failure to state grounds in relation to the breach of the Commission’s ‘Best Practices’ and in relation to the breach of the principle of due process
  By its fifth ground of appeal, Buzzi Unicem submits that the General Court erred in law by finding that the Commission’s ‘Best Practices’ were not binding on the Commission where, having decided to ask undertakings to comment on a draft decision under Article 18(3) of Regulation No 1/2003, the Commission thereafter did not take any account of the comments received and significantly amended the text of the final decision. Buzzi Unicem also contests the failure to state grounds in relation to the breach of the principle of due process on the part of the Commission through the way in which it had exercised the power to request information. |
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E.

Fifth ground of appeal, alleging error of law and failure to state grounds in relation to the breach of the Commission’s ‘Best Practices’ and in relation to the breach of the principle of due process

By its fifth ground of appeal, Buzzi Unicem submits that the General Court erred in law by finding that the Commission’s ‘Best Practices’ were not binding on the Commission where, having decided to ask undertakings to comment on a draft decision under Article 18(3) of Regulation No 1/2003, the Commission thereafter did not take any account of the comments received and significantly amended the text of the final decision. Buzzi Unicem also contests the failure to state grounds in relation to the breach of the principle of due process on the part of the Commission through the way in which it had exercised the power to request information.

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(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 (Text with EEA relevance) (OJ 2003 L 1, p. 1).

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