# C_2014282EN.01002101.xml

| 25.8.2014 | EN | Official Journal of the European Union | C 282/21 |
| --- | --- | --- | --- |

25.8.2014

EN

Official Journal of the European Union

C 282/21

---

Appeal brought on 30 May 2014 by Italmobiliare SpA against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-305/11 Italmobiliare SpA v European Commission

(Case C-268/14 P)

2014/C 282/27

Language of the case: Italian

Parties

Parties

Appellant: Italmobiliare SpA (represented by: M. Siragusa, F. Moretti and L. Nascimbene, avvocati)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

| — | Set aside the judgment in its entirety, with all the consequences that entails, including annulment of the contested decision; |
| --- | --- |

—

Set aside the judgment in its entirety, with all the consequences that entails, including annulment of the contested decision;

| — | In so far as they may be considered appropriate and necessary, order the measures of organisation of procedure and/or the measures of inquiry referred to in Articles 62 and 64, respectively, of the Rules of Procedure of the Court of Justice; |
| --- | --- |

—

In so far as they may be considered appropriate and necessary, order the measures of organisation of procedure and/or the measures of inquiry referred to in Articles 62 and 64, respectively, of the Rules of Procedure of the Court of Justice;

| — | Order the Commission to pay the costs, including those incurred before the General Court; and |
| --- | --- |

—

Order the Commission to pay the costs, including those incurred before the General Court; and

| — | In the alternative, where the above is not possible, refer the case back to the General Court for the implementation of any measures of inquiry or organisation of procedure not already arranged by the Court. |
| --- | --- |

—

In the alternative, where the above is not possible, refer the case back to the General Court for the implementation of any measures of inquiry or organisation of procedure not already arranged by the Court.

Grounds of appeal and main arguments

Grounds of appeal and main arguments

| 1 | First ground of appeal: the General Court erred in its identification of the addressee of the contested decision
  By its first ground, Italmobiliare challenges the argument endorsed by the General Court that Italmobiliare might reasonably be assumed to have access to the information sought. It also argues that the General Court seriously distorted the facts and erred in its application of the principle of the protection of legitimate expectations by not considering that the Commission’s earlier conduct and written assurances were likely to give rise to the legitimate expectation that Italmobiliare would not be concerned by the contested decision. Lastly, it is submitted that the judgment of the General Court is vitiated by a complete failure to state reasons with regard to Italmobiliare’s plea alleging breach of the principle of non-discrimination because it does not examine the argument put forward by Italmobiliare to demonstrate that it is the only financial holding company to be involved in the procedure as an addressee of the request for information under Article 18(3) of Regulation No 1/2003. (1) |
| --- | --- |

1

First ground of appeal: the General Court erred in its identification of the addressee of the contested decision

By its first ground, Italmobiliare challenges the argument endorsed by the General Court that Italmobiliare might reasonably be assumed to have access to the information sought. It also argues that the General Court seriously distorted the facts and erred in its application of the principle of the protection of legitimate expectations by not considering that the Commission’s earlier conduct and written assurances were likely to give rise to the legitimate expectation that Italmobiliare would not be concerned by the contested decision. Lastly, it is submitted that the judgment of the General Court is vitiated by a complete failure to state reasons with regard to Italmobiliare’s plea alleging breach of the principle of non-discrimination because it does not examine the argument put forward by Italmobiliare to demonstrate that it is the only financial holding company to be involved in the procedure as an addressee of the request for information under Article 18(3) of Regulation No 1/2003. (1)

1

| 2 | Second ground of appeal: the General Court’s reasoning when examining the plea alleging that the Commission infringed Article 296 TFEU is contradictory and illogical
  By its second ground, Italmobiliare argues that the reasoning used by the General Court is contradictory and illogical inasmuch as, while recognising that the Commission’s statement of reasons is inadequate as regards the object and purpose of the request, that Court considers it to be comprehensive if read in the context of the reasoning set out in the opening decision, even though that decision does not add anything in terms of substance to the content of the contested decision. Italmobiliare also submits that the statement of reasons in the contested decision, subsequently reproduced in the judgment under appeal, is incomplete as regards the necessity of the information sought and the choice of using as an instrument the decision referred to in Article 18(3) of Regulation No 1/2003. |
| --- | --- |

2

Second ground of appeal: the General Court’s reasoning when examining the plea alleging that the Commission infringed Article 296 TFEU is contradictory and illogical

By its second ground, Italmobiliare argues that the reasoning used by the General Court is contradictory and illogical inasmuch as, while recognising that the Commission’s statement of reasons is inadequate as regards the object and purpose of the request, that Court considers it to be comprehensive if read in the context of the reasoning set out in the opening decision, even though that decision does not add anything in terms of substance to the content of the contested decision. Italmobiliare also submits that the statement of reasons in the contested decision, subsequently reproduced in the judgment under appeal, is incomplete as regards the necessity of the information sought and the choice of using as an instrument the decision referred to in Article 18(3) of Regulation No 1/2003.

| 3 | Third ground of appeal: the General Court erred in its application of Article 101 TFEU and Article 18(1) and (3) of Regulation No 1/2003 by failing to recognise that the contested decision is ultra vires

  By its third ground, Italmobiliare contests the analysis carried out by the General Court in relation to the claim that the Commission lacked the power to adopt the contested decision. It argues that the General Court essentially failed to take into consideration the evidence provided by Italmobiliare in support of its claim, and did not adopt any measures of organisation of procedure in order to investigate the evidence which, according to the Commission, justified the request for information. |
| --- | --- |

3

Third ground of appeal: the General Court erred in its application of Article 101 TFEU and Article 18(1) and (3) of Regulation No 1/2003 by failing to recognise that the contested decision is ultra vires

ultra vires

By its third ground, Italmobiliare contests the analysis carried out by the General Court in relation to the claim that the Commission lacked the power to adopt the contested decision. It argues that the General Court essentially failed to take into consideration the evidence provided by Italmobiliare in support of its claim, and did not adopt any measures of organisation of procedure in order to investigate the evidence which, according to the Commission, justified the request for information.

| 4 | Fourth ground of appeal: the statement of reasons relating to the examination of the plea alleging breach of the principle of proportionality is inadequate, contradictory and illogical
  By its fourth ground, Italmobiliare submits that inadequate and/or contradictory reasoning was used in the following areas relating to the Commission’s alleged breach of the principle of proportionality: (i) the unsuitability of the request for information as a means of pursuing the objective set in the present case; (ii) the excessive cost of the efforts that the company is required to make in preparing a response to the request for information; and (iii) the breach of the ‘more moderate means’ criterion, which requires the objectives of an investigation always to be pursued through the adoption of measures which involve only minor sacrifices on the part of the addressees as regards their legal rights. |
| --- | --- |

4

Fourth ground of appeal: the statement of reasons relating to the examination of the plea alleging breach of the principle of proportionality is inadequate, contradictory and illogical

By its fourth ground, Italmobiliare submits that inadequate and/or contradictory reasoning was used in the following areas relating to the Commission’s alleged breach of the principle of proportionality: (i) the unsuitability of the request for information as a means of pursuing the objective set in the present case; (ii) the excessive cost of the efforts that the company is required to make in preparing a response to the request for information; and (iii) the breach of the ‘more moderate means’ criterion, which requires the objectives of an investigation always to be pursued through the adoption of measures which involve only minor sacrifices on the part of the addressees as regards their legal rights.

| 5 | Fifth ground of appeal: the statement of reasons relating to the alleged infringement of the right to be heard is inadequate
  By its fifth ground, Italmobiliare submits that the statement of reasons provided in the judgment under appeal in relation to the alleged infringement of the right to be heard is inadequate. It argues that the General Court was wrong to hold that the ‘way’ in which the Commission conducts a consultation may escape judicial review solely on the ground that the Commission was under ‘no obligation’ to proceed in that manner. |
| --- | --- |

5

Fifth ground of appeal: the statement of reasons relating to the alleged infringement of the right to be heard is inadequate

By its fifth ground, Italmobiliare submits that the statement of reasons provided in the judgment under appeal in relation to the alleged infringement of the right to be heard is inadequate. It argues that the General Court was wrong to hold that the ‘way’ in which the Commission conducts a consultation may escape judicial review solely on the ground that the Commission was under ‘no obligation’ to proceed in that manner.

---

(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).

1

---