# C_2018427EN.01008001.xml

| 26.11.2018 | EN | Official Journal of the European Union | C 427/80 |
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26.11.2018

EN

Official Journal of the European Union

C 427/80

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Action brought on 29 August 2018 — FAKRO v Commission

(Case T-515/18)

(2018/C 427/107)

Language of the case: Polish

Parties

Applicant: FAKRO sp. z o.o. (Nowy Sącz, Poland) (represented by: A. Radkowiak-Macuda, legal adviser)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the Commission of 14 June 2018, issued in the proceedings conducted as a result of the complaint submitted to the Commission by FAKRO sp. z o.o. on 12 July 2012 concerning abuse of a dominant position by the VELUX Group (Ref. AT.40026 VELUX); |
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annul the decision of the Commission of 14 June 2018, issued in the proceedings conducted as a result of the complaint submitted to the Commission by FAKRO sp. z o.o. on 12 July 2012 concerning abuse of a dominant position by the VELUX Group (Ref. AT.40026 VELUX);

| — | order the Commission to pay the costs of the proceedings. |
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order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging a manifest error of assessment, together with an insufficient statement of reasons for the contested decision, resulting in a finding that there is no EU interest in pursuing the case.
  The applicant argues that the Commission did not take a definitive position either in relation to the prerequisites for a possibility of finding abuse of a dominant position or in relation to any of the seven categories of acts allegedly committed. In assessing the complaint that the dominant undertaking had applied predatory pricing, the Commission uncritically based its decision on the arguments put forward by that undertaking, disregarding the applicant’s arguments and failing to carry out even a cursory analysis of the issue. The applicant considers that the sole purpose of the launching of the fighting brand by the dominant undertaking was to make it impossible for its competitors to enter the market or to make development on that market impossible, and that the investment discounts applied by that undertaking are selective, exclusive and discriminatory, with the result that there is an infringement of Article 102 TFEU. The applicant argues that the evidence points clearly to the conclusion by the dominant undertaking of exclusivity agreements contrary to Article 102 TFEU, and that the conducting of investigative proceedings would not require substantial resources to be set aside for that purpose, but would require only verification of the information and evidence submitted by the applicant. |
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1.

First plea in law, alleging a manifest error of assessment, together with an insufficient statement of reasons for the contested decision, resulting in a finding that there is no EU interest in pursuing the case.

The applicant argues that the Commission did not take a definitive position either in relation to the prerequisites for a possibility of finding abuse of a dominant position or in relation to any of the seven categories of acts allegedly committed. In assessing the complaint that the dominant undertaking had applied predatory pricing, the Commission uncritically based its decision on the arguments put forward by that undertaking, disregarding the applicant’s arguments and failing to carry out even a cursory analysis of the issue. The applicant considers that the sole purpose of the launching of the fighting brand by the dominant undertaking was to make it impossible for its competitors to enter the market or to make development on that market impossible, and that the investment discounts applied by that undertaking are selective, exclusive and discriminatory, with the result that there is an infringement of Article 102 TFEU. The applicant argues that the evidence points clearly to the conclusion by the dominant undertaking of exclusivity agreements contrary to Article 102 TFEU, and that the conducting of investigative proceedings would not require substantial resources to be set aside for that purpose, but would require only verification of the information and evidence submitted by the applicant.

| 2. | Second plea in law, alleging infringement of the principle of sound administration in connection with a manifest error of assessment regarding the lack of EU interest in continuing the proceedings.
  More than 71 months elapsed between the submission of the complaint and the issuing of the decision rejecting that complaint. The Commission’s tardy handling of the matter is not justified by any special circumstances. The Commission has comprehensive knowledge on the subject of the European roof-window market. The slowness to act on the Commission’s part may result in a lack of opportunity for the applicant to assert its rights before the national competition authorities on account of the limitation period for claims laid down in national law. |
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2.

Second plea in law, alleging infringement of the principle of sound administration in connection with a manifest error of assessment regarding the lack of EU interest in continuing the proceedings.

More than 71 months elapsed between the submission of the complaint and the issuing of the decision rejecting that complaint. The Commission’s tardy handling of the matter is not justified by any special circumstances. The Commission has comprehensive knowledge on the subject of the European roof-window market. The slowness to act on the Commission’s part may result in a lack of opportunity for the applicant to assert its rights before the national competition authorities on account of the limitation period for claims laid down in national law.

| 3. | Third plea in law, alleging infringement of Article 8(1) of Regulation No 773/2004 (1) through the refusal to provide the applicant with access to the files, resulting in a denial to the applicant of effective rights of defence.
  In accordance with the applicable rules, when the Commission informs a complainant of its intention to reject a complaint, the complainant has a right of access to the documents on which the Commission bases its provisional assessment. In the present case, the Commission did not provide the applicant with any such access. Furthermore, the Commission erred in law with regard to the principles for assessing EU interest by failing to carry out a proper assessment of the nature and effects of the acts allegedly committed by the dominant undertaking. |
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3.

Third plea in law, alleging infringement of Article 8(1) of Regulation No 773/2004 (1) through the refusal to provide the applicant with access to the files, resulting in a denial to the applicant of effective rights of defence.

In accordance with the applicable rules, when the Commission informs a complainant of its intention to reject a complaint, the complainant has a right of access to the documents on which the Commission bases its provisional assessment. In the present case, the Commission did not provide the applicant with any such access. Furthermore, the Commission erred in law with regard to the principles for assessing EU interest by failing to carry out a proper assessment of the nature and effects of the acts allegedly committed by the dominant undertaking.

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(1)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU and 102 TFEU] (OJ 2004 L 123, p. 18).

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