# C_2021072EN.01002801.xml

| 1.3.2021 | EN | Official Journal of the European Union | C 72/28 |
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1.3.2021

EN

Official Journal of the European Union

C 72/28

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Action brought on 17 December 2020 — Car-Master 2 v Commission

(Case T-743/20)

(2021/C 72/40)

Language of the case: Polish

Parties

Applicant: Car-Master 2 sp. z o.o sp.k. (Krakow, Poland) (represented by: M. Miśkowicz, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul European Commission Decision C(2020)7369 final of 22 October 2020 in Case AT.40665 — Toyota; |
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Annul European Commission Decision C(2020)7369 final of 22 October 2020 in Case AT.40665 — Toyota;

| — | Order the defendant to pay the costs of the proceedings, including the costs of legal representation. |
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Order the defendant to pay the costs of the proceedings, including the costs of legal representation.

Pleas in law and main arguments

In support of the action, the applicant relies on two pleas in law.

| 1. | First plea in law, alleging misinterpretation and misapplication of Article 13(2) of Council Regulation No 1/2003 (‘Regulation No 1/2003’) (1).






  — | In support of this plea, the applicant claims that the case was not dealt with by the Polish competition authority within the meaning of Article 13(2) of Regulation No 1/2003. The applicant submitted a notice concerning a suspicion of anti-competitive practices to the President of the Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers) (‘the President of the UOKiK’). That authority refused, first, to take the steps provided for in the legal provisions and to conduct an assessment of the conduct at issue, on the basis that it did not have sufficient information, and called on the applicant to provide information. At the same time, the authority itself did not take any steps with the objective of obtaining that information, and shifted the burden of proof in its entirety onto the applicant. As a result, the action of the authority does not qualify as ‘examination of the case’ as provided for in the Commission Notice on cooperation within the Network of Competition Authorities (2) and the case-law of the General Court. The Commission therefore also relied incorrectly on Article 13(2) of Regulation No 1/2003 to reject the complaint. The applicant adds that as a result of the Commission’s rejection of the complaint, the case was not examined by any authority, which is in fact contrary to recital 18 of Regulation No 1/2003. |
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1.

First plea in law, alleging misinterpretation and misapplication of Article 13(2) of Council Regulation No 1/2003 (‘Regulation No 1/2003’) (1).

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In support of this plea, the applicant claims that the case was not dealt with by the Polish competition authority within the meaning of Article 13(2) of Regulation No 1/2003. The applicant submitted a notice concerning a suspicion of anti-competitive practices to the President of the Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers) (‘the President of the UOKiK’). That authority refused, first, to take the steps provided for in the legal provisions and to conduct an assessment of the conduct at issue, on the basis that it did not have sufficient information, and called on the applicant to provide information. At the same time, the authority itself did not take any steps with the objective of obtaining that information, and shifted the burden of proof in its entirety onto the applicant. As a result, the action of the authority does not qualify as ‘examination of the case’ as provided for in the Commission Notice on cooperation within the Network of Competition Authorities (2) and the case-law of the General Court. The Commission therefore also relied incorrectly on Article 13(2) of Regulation No 1/2003 to reject the complaint. The applicant adds that as a result of the Commission’s rejection of the complaint, the case was not examined by any authority, which is in fact contrary to recital 18 of Regulation No 1/2003.

| 2. | Second plea in law, alleging infringement of the right to good administration resulting from Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).






  — | The applicant submits in support of this plea that it cannot take advantage of its rights under Article 41(1) of the Charter, since no authority has examined its case. It is unable to act, since, first, national legislation does not provide for the possibility of bringing an appeal against the refusal of the President of the UOKiK to take legal action. Second, the Commission has abstained from examining the case, incorrectly finding that it has already been examined. As a result, the applicant has been denied a means to exercise its rights. The applicant specifies that the Commission failed to take into account all circumstances of the given case and failed to examine carefully the applicant’s situation. According to the applicant, the Commission should have investigated in detail whether the case was examined and how, and therefore should have carefully analysed the action taken by the national competition authority. The Commission failed to comply with this obligation and therefore failed to observe the duty of due diligence resulting from the right to good administration The Commission also failed to comply with the obligation stemming from Article 105(1) TFEU, since it failed to take into account the circumstance that in the event of its rejection of the complaint, a case involving potential infringement of the principle of competition would remain unresolved, since it was not examined by the national authority. |
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2.

Second plea in law, alleging infringement of the right to good administration resulting from Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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The applicant submits in support of this plea that it cannot take advantage of its rights under Article 41(1) of the Charter, since no authority has examined its case. It is unable to act, since, first, national legislation does not provide for the possibility of bringing an appeal against the refusal of the President of the UOKiK to take legal action. Second, the Commission has abstained from examining the case, incorrectly finding that it has already been examined. As a result, the applicant has been denied a means to exercise its rights. The applicant specifies that the Commission failed to take into account all circumstances of the given case and failed to examine carefully the applicant’s situation. According to the applicant, the Commission should have investigated in detail whether the case was examined and how, and therefore should have carefully analysed the action taken by the national competition authority. The Commission failed to comply with this obligation and therefore failed to observe the duty of due diligence resulting from the right to good administration The Commission also failed to comply with the obligation stemming from Article 105(1) TFEU, since it failed to take into account the circumstance that in the event of its rejection of the complaint, a case involving potential infringement of the principle of competition would remain unresolved, since it was not examined by the national authority.

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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 [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

(2)  OJ 2004 C 101, p. 43.

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