# C_2019004EN.01003101.xml

| 7.1.2019 | EN | Official Journal of the European Union | C 4/31 |
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7.1.2019

EN

Official Journal of the European Union

C 4/31

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Action brought on 15 October 2018 — Polskie Górnictwo Naftowe i Gazownictwo v European Commission

(Case T-616/18)

(2019/C 4/42)

Language of the case: Polish

Parties

Applicant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (Warsaw, Poland) (represented by: E. Buczkowska and M. Trepka, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the Commission Decision of 24 May 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement in Case AT.39816 — Upstream Gas Supplies in Central and Eastern Europe, (1) closing that proceeding in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], (2) by making the commitments of the public joint stock company Gazprom and Gazprom Export LLC (‘Gazprom’) of 15 March 2018 legally binding; |
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annul the Commission Decision of 24 May 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement in Case AT.39816 — Upstream Gas Supplies in Central and Eastern Europe, (1) closing that proceeding in accordance with Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], (2) by making the commitments of the public joint stock company Gazprom and Gazprom Export LLC (‘Gazprom’) of 15 March 2018 legally binding;

| — | 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 six pleas in law.

| 1. | First plea in law, alleging that the Commission adopted a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission committed a manifest error of assessment of the evidence gathered and considered that the objections raised during proceeding AT.39816, which concerned the subordination, on the part of Gazprom, of gas deliveries to Poland to the obtaining of control of gas infrastructures in Poland, were not justified and, by reason of that error, accepted commitments of Gazprom which did not address the objections raised in that regard. |
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1.

First plea in law, alleging that the Commission adopted a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission committed a manifest error of assessment of the evidence gathered and considered that the objections raised during proceeding AT.39816, which concerned the subordination, on the part of Gazprom, of gas deliveries to Poland to the obtaining of control of gas infrastructures in Poland, were not justified and, by reason of that error, accepted commitments of Gazprom which did not address the objections raised in that regard.

| 2. | Second plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the application of unfair and manifestly excessive prices, commitments which do not adequately address the objections of the Commission, including the essence of those complaints, namely the application by a dominant operator of manifestly excessive prices. |
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2.

Second plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the application of unfair and manifestly excessive prices, commitments which do not adequately address the objections of the Commission, including the essence of those complaints, namely the application by a dominant operator of manifestly excessive prices.

| 3. | Third plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the implementation of territorial restrictions, which do not adequately address the Commission’s objections, are selective and reproduce commitments already formulated by the dominant operator in other proceedings but which, however, have not led to any change in its conduct. |
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3.

Third plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 9 of Regulation No 1/2003, read in conjunction with Article 102 TFEU, and of the principle of proportionality, in so far as the Commission accepted Gazprom’s commitments concerning the implementation of territorial restrictions, which do not adequately address the Commission’s objections, are selective and reproduce commitments already formulated by the dominant operator in other proceedings but which, however, have not led to any change in its conduct.

| 4. | Fourth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 7 TFEU, read in conjunction with Article 194(1) TFEU, in so far as the Commission adopted a decision that is contrary to the energy-policy objectives of the European Union, without taking into account its negative effect on the European gas supply market, a decision which further reinforces, in particular, the isolation and maintenance of non-competitive conditions on Central and Eastern European gas markets in comparison with Western Europe, even though the objective of that policy is to integrate those markets and to ensure equal conditions of competition on all markets of the European Union. |
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4.

Fourth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of Article 7 TFEU, read in conjunction with Article 194(1) TFEU, in so far as the Commission adopted a decision that is contrary to the energy-policy objectives of the European Union, without taking into account its negative effect on the European gas supply market, a decision which further reinforces, in particular, the isolation and maintenance of non-competitive conditions on Central and Eastern European gas markets in comparison with Western Europe, even though the objective of that policy is to integrate those markets and to ensure equal conditions of competition on all markets of the European Union.

| 5. | Fifth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of the first paragraph of Article 18 TFEU and the principle of equality, in so far as the Commission discriminated between the contracting partners of Gazprom active on the markets of Central and Eastern European countries, including the applicant, and the contracting partners of Gazprom active on the markets of Western European countries, even though the two abovementioned groups of contracting partners operate on the same European Union gas-supply market and, in that respect, benefit from the rules of Article 102 TFEU and Article 194(1) TFEU and the secondary legislation adopted on that basis. |
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5.

Fifth plea in law, alleging that the Commission made a decision vitiated by a manifest infringement of the first paragraph of Article 18 TFEU and the principle of equality, in so far as the Commission discriminated between the contracting partners of Gazprom active on the markets of Central and Eastern European countries, including the applicant, and the contracting partners of Gazprom active on the markets of Western European countries, even though the two abovementioned groups of contracting partners operate on the same European Union gas-supply market and, in that respect, benefit from the rules of Article 102 TFEU and Article 194(1) TFEU and the secondary legislation adopted on that basis.

| 6. | Sixth plea in law, alleging abuse of powers and infringement of essential procedural requirements, in so far as the Commission adopted a decision which is objectively contrary to the purpose of Article 9 of Regulation No 1/2003 and conducted proceeding AT.39816 in clear breach of the powers conferred on it. |
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6.

Sixth plea in law, alleging abuse of powers and infringement of essential procedural requirements, in so far as the Commission adopted a decision which is objectively contrary to the purpose of Article 9 of Regulation No 1/2003 and conducted proceeding AT.39816 in clear breach of the powers conferred on it.

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(1)  OJ 2018 C 258, p. 6.

(2)  OJ 2003 L 1, p. 1.

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