# C_2022266EN.01001301.xml

| 11.7.2022 | EN | Official Journal of the European Union | C 266/13 |
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11.7.2022

EN

Official Journal of the European Union

C 266/13

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Appeal brought on 8 April 2022 by Polskie Górnictwo Naftowe i Gazownictwo S.A. against the judgment of the General Court delivered on 2 February 2022 in Case T-616/18, Polskie Górnictwo Naftowe i Gazownictwo v Commission

(Case C-255/22 P)

(2022/C 266/16)

Language of the case: Polish

Parties

Appellant: Polskie Górnictwo Naftowe i Gazownictwo S.A. (represented by: K. Karasiewicz, radca prawny, and T. Kaźmierczak, adwokat)

Other parties to the proceedings: European Commission, Republic of Lithuania, Republic of Poland, Gazprom PJSC, Gazprom export LLC, and Overgas Inc.

Form of order sought

The appellant claims that the Court should:

| — | set aside the judgment under appeal in its entirety; |
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set aside the judgment under appeal in its entirety;

| — | annul the contested decision of the European Commission in its entirety; |
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annul the contested decision of the European Commission in its entirety;

| — | in the alternative, remit the case to the General Court for review in accordance with the judgment of the Court of Justice; |
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in the alternative, remit the case to the General Court for review in accordance with the judgment of the Court of Justice;

| — | order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court. |
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order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

| (1) | The General Court erred in law, infringing Article 9(1) of 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 (1) (‘Regulation No 1/2003’) by:






  (a) | incorrectly interpreting that provision, read in conjunction with paragraph 127 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; |
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(1)

The General Court erred in law, infringing Article 9(1) of 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 (1) (‘Regulation No 1/2003’) by:

(a)

incorrectly interpreting that provision, read in conjunction with paragraph 127 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments;

| (b) | manifestly distorting the facts on a number of occasions, which led it to misapply Article 9 of Regulation No 1/2003 and, as a result of that infringement, incorrectly to find that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; |
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(b)

manifestly distorting the facts on a number of occasions, which led it to misapply Article 9 of Regulation No 1/2003 and, as a result of that infringement, incorrectly to find that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments;

| (c) | failing to consider that, in the context of its permissible discretion in assessing complex economic and technical issues, the Commission was obliged to act in a manner that complied with and accounted for the provisions of the TFEU and the fundamental principles of the EU legal order, since its actions may not be contrary to the provisions of the TFEU and the fundamental principles of the EU legal order; nor may they lead to an outcome that would be contrary to those provisions [or] principles; |
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(c)

failing to consider that, in the context of its permissible discretion in assessing complex economic and technical issues, the Commission was obliged to act in a manner that complied with and accounted for the provisions of the TFEU and the fundamental principles of the EU legal order, since its actions may not be contrary to the provisions of the TFEU and the fundamental principles of the EU legal order; nor may they lead to an outcome that would be contrary to those provisions [or] principles;

| (2) | The General Court erred in law, infringing Article 194 TFEU by incorrectly interpreting that provision and, as a result, incorrectly failing to apply it, which led to Article 9 of Regulation No 1/2003 and Article 194 TFEU being deprived of their effectiveness; |
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(2)

The General Court erred in law, infringing Article 194 TFEU by incorrectly interpreting that provision and, as a result, incorrectly failing to apply it, which led to Article 9 of Regulation No 1/2003 and Article 194 TFEU being deprived of their effectiveness;

| (3) | The General Court erred in law, infringing Article 9(1) of Regulation No 1/2003 by incorrectly interpreting the concept of ‘manifest error of assessment’ when examining the manner in which the Commission had conducted the assessment of complex economic and technical issues when examining the adequacy of the commitments, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; |
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(3)

The General Court erred in law, infringing Article 9(1) of Regulation No 1/2003 by incorrectly interpreting the concept of ‘manifest error of assessment’ when examining the manner in which the Commission had conducted the assessment of complex economic and technical issues when examining the adequacy of the commitments, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments;

| (4) | The General Court erred in law, infringing Article 9(2) of Regulation No 1/2003 by incorrectly interpreting that provision with regard to its indicating, as a basis for reopening the proceedings:






  (a) | infringement of a commitment the content of which does not result from the content of the operative part, that is to say, the legally binding part of the decision in Case AT.39816 — Upstream gas supplies in Central and Eastern Europe; |
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(4)

The General Court erred in law, infringing Article 9(2) of Regulation No 1/2003 by incorrectly interpreting that provision with regard to its indicating, as a basis for reopening the proceedings:

(a)

infringement of a commitment the content of which does not result from the content of the operative part, that is to say, the legally binding part of the decision in Case AT.39816 — Upstream gas supplies in Central and Eastern Europe;

| (b) | circumstances which did not form the basis of that decision and which were not related to its subject matter, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; the appellant also submits that all the aforementioned infringements, jointly and severally, had a decisive influence on the content of the judgment under appeal and, consequently, each of the indicated infringements on its own should result in that judgment being set aside. |
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(b)

circumstances which did not form the basis of that decision and which were not related to its subject matter, which led it incorrectly to conclude that the Commission had not made a manifest error of assessment in respect of the adequacy of the commitments; the appellant also submits that all the aforementioned infringements, jointly and severally, had a decisive influence on the content of the judgment under appeal and, consequently, each of the indicated infringements on its own should result in that judgment being set aside.

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

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