# C_2020433EN.01005201.xml

| 14.12.2020 | EN | Official Journal of the European Union | C 433/52 |
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14.12.2020

EN

Official Journal of the European Union

C 433/52

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Action brought on 11 September 2020 — OD v Commission

(Case T-575/20)

(2020/C 433/67)

Language of the case: Slovenian

Parties

Applicant: OD (represented by: V. Cukrov, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | Annul in its entirety Commission Implementing Decision (EU) 2020/1025 of 13 July 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to railway freight transport in Slovenia (notified under document number C(2020) 4540) (OJ 2020 L 226, p. 5; ‘the implementing decision’), with regard to both Article 1 of that decision, pursuant to which Directive 2014/25/EU continues to apply to contracts awarded by contracting entities and intended to enable the rail freight transport services to be carried out on the territory of Slovenia, and Article 2 of that decision, which provides that that decision is addressed to the Republic of Slovenia; |
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Annul in its entirety Commission Implementing Decision (EU) 2020/1025 of 13 July 2020 on the applicability of Article 34 of Directive 2014/25/EU of the European Parliament and of the Council to railway freight transport in Slovenia (notified under document number C(2020) 4540) (OJ 2020 L 226, p. 5; ‘the implementing decision’), with regard to both Article 1 of that decision, pursuant to which Directive 2014/25/EU continues to apply to contracts awarded by contracting entities and intended to enable the rail freight transport services to be carried out on the territory of Slovenia, and Article 2 of that decision, which provides that that decision is addressed to the Republic of Slovenia;

| — | Order the European Commission to pay all the costs of the proceedings, including the costs incurred by the applicant as set out in the statement for fees, within 15 days from the date of delivery of judgment, in addition to statutory interest in the event of late payment running from the expiry of that 15-day period. |
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Order the European Commission to pay all the costs of the proceedings, including the costs incurred by the applicant as set out in the statement for fees, within 15 days from the date of delivery of judgment, in addition to statutory interest in the event of late payment running from the expiry of that 15-day period.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging substantive illegality of the contested decision as it indicates the incorrect addressee:






  — | in Article 2 of the contested decision, the defendant indicated that the addressee of that decision is the Republic of Slovenia, whereas the applicant was the sole intervener in the procedure before the defendant and had, moreover, requested that the decision be addressed to both the applicant and the Republic of Slovenia. |
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1.

First plea in law, alleging substantive illegality of the contested decision as it indicates the incorrect addressee:

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in Article 2 of the contested decision, the defendant indicated that the addressee of that decision is the Republic of Slovenia, whereas the applicant was the sole intervener in the procedure before the defendant and had, moreover, requested that the decision be addressed to both the applicant and the Republic of Slovenia.

| 2. | Second plea in law, alleging formal illegality of the contested decision:






  — | the defendant did not invite the applicant to submit the necessary additional information and, in the absence of that information, adopted an incorrect decision, on the basis of which the (goods) market taken into consideration does not include freight transport by road, thereby infringing the right to sound administration; |
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2.

Second plea in law, alleging formal illegality of the contested decision:

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the defendant did not invite the applicant to submit the necessary additional information and, in the absence of that information, adopted an incorrect decision, on the basis of which the (goods) market taken into consideration does not include freight transport by road, thereby infringing the right to sound administration;

| — | the defendant failed to state sufficient reasons for the contested decision with regard to the third, fourth and fifth pleas in law, in so far as that decision did not adopt a position regarding the defendant’s own previous decisions that are favourable to the applicant, thereby committing a substantial infringement of procedural rules. |
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the defendant failed to state sufficient reasons for the contested decision with regard to the third, fourth and fifth pleas in law, in so far as that decision did not adopt a position regarding the defendant’s own previous decisions that are favourable to the applicant, thereby committing a substantial infringement of procedural rules.

| 3. | Third plea in law, alleging substantive illegality of the contested decision on the ground that it incorrectly defines the (goods) market taken into consideration:






  — | the defendant, going against its own practice (for example, Commission Implementing Decision (EU) 2017/132 of 24 January 2017), circumscribed the (goods) market taken into consideration, limiting it to the railway transport market rather than including the market for railway, road and air transport; |
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3.

Third plea in law, alleging substantive illegality of the contested decision on the ground that it incorrectly defines the (goods) market taken into consideration:

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the defendant, going against its own practice (for example, Commission Implementing Decision (EU) 2017/132 of 24 January 2017), circumscribed the (goods) market taken into consideration, limiting it to the railway transport market rather than including the market for railway, road and air transport;

| — | in so doing, the defendant infringed the principle of equal treatment and the prohibition of discrimination, to the applicant’s detriment, in so far as, in the substantially similar situation referred to in the previous indent, the defendant adopted a decision in favour of the investor, whereas it rejected the current applicant’s request. |
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in so doing, the defendant infringed the principle of equal treatment and the prohibition of discrimination, to the applicant’s detriment, in so far as, in the substantially similar situation referred to in the previous indent, the defendant adopted a decision in favour of the investor, whereas it rejected the current applicant’s request.

| 4. | Fourth plea in law, alleging substantive illegality of the contested decision on the ground that it incorrectly defines the geographical market:






  — | the defendant unjustifiably limited the geographical market to the territory of the Republic of Slovenia on the basis of an incorrect interpretation of Special Report No 8/2016, entitled ‘Rail freight transport in the EU: still not on the right track’ published by the European Court of Auditors, thereby failing to take into account the applicant’s claims and evidence that it in fact operates on the international market. |
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4.

Fourth plea in law, alleging substantive illegality of the contested decision on the ground that it incorrectly defines the geographical market:

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the defendant unjustifiably limited the geographical market to the territory of the Republic of Slovenia on the basis of an incorrect interpretation of Special Report No 8/2016, entitled ‘Rail freight transport in the EU: still not on the right track’ published by the European Court of Auditors, thereby failing to take into account the applicant’s claims and evidence that it in fact operates on the international market.

| 5. | Fifth plea in law, alleging substantive illegality of the contested decision on the ground that it fails to take into account all the indicators for the assessment of the competitive situation:






  — | in the assessment of the competitive situation, the defendant took into consideration the applicant’s market share alone, whereas it should have taken into account several other factors, such as the actual or potential presence of competition for the purposes of Article 34(2) of Directive 2014/25/EU; the defendant failed to take into consideration the fact that four new competitors had joined the market in addition to the three competitors already on the market, as well as the fact that, for that reason, the applicant’s market share would subsequently decrease; |
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5.

Fifth plea in law, alleging substantive illegality of the contested decision on the ground that it fails to take into account all the indicators for the assessment of the competitive situation:

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in the assessment of the competitive situation, the defendant took into consideration the applicant’s market share alone, whereas it should have taken into account several other factors, such as the actual or potential presence of competition for the purposes of Article 34(2) of Directive 2014/25/EU; the defendant failed to take into consideration the fact that four new competitors had joined the market in addition to the three competitors already on the market, as well as the fact that, for that reason, the applicant’s market share would subsequently decrease;

| — | the defendant, taking into consideration the applicant’s market share alone, incorrectly found that that share (85.21 %) is too high to conclude that the market is open to competition, even though it had already established in previous decisions that market shares of 86,7 % and 73,6 % are not too high if account is taken of other circumstances (Commission Decision 2007/706/EC of 29 October 2007 and Commission Decision 2006/422/EC of 29 October 2007). |
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the defendant, taking into consideration the applicant’s market share alone, incorrectly found that that share (85.21 %) is too high to conclude that the market is open to competition, even though it had already established in previous decisions that market shares of 86,7 % and 73,6 % are not too high if account is taken of other circumstances (Commission Decision 2007/706/EC of 29 October 2007 and Commission Decision 2006/422/EC of 29 October 2007).

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