# C_2013164EN.01002201.xml

| 8.6.2013 | EN | Official Journal of the European Union | C 164/22 |
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Action brought on 9 April 2013 — Portugal Telecom v Commission

(Case T-208/13)

2013/C 164/38

Language of the case: Portuguese

Parties

Applicant: Portugal Telecom SGPS, SA (Lisbon, Portugal) (represented by: N. Mimoso Ruiz and R. Bordalo Junqueiro, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the General Court should:

| — | annul European Commission Decision C(2013) 306, and order the Commission to pay the costs of the proceedings and the costs incurred by the applicant; |
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| — | in the alternative, reduce the fine imposed on the applicant in Article 2 of the Commission’s decision. |
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Pleas in law and main arguments

It was found in the contested decision that Portugal Telecom and Telefónica S.A. infringed Article 101 TFEU in inserting a clause 9 in the agreement by which Telefónica S.A acquired a block of shares from Portugal Telecom in Brasilcel NV. The Commission interpreted that clause as a no-competition agreement independent of the transaction at issue.

In support of its action, Portugal Telecom relies on two pleas in law.

| 1. | First plea in law, alleging an infringement of essential procedural requirements:
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The applicant considers that the decision is erroneous, since the grounds thereof contain omissions, imprecisions and errors in essential areas, which adversely affect the form of order which the applicant seeks; —
The applicant further considers that the decision is based on insufficient evidence, in so far as the Commission does not furnish any evidence to weaken the evidence furnished by the applicant and from which it results that Clause 9 of the agreement contains a no-competition agreement which, given the circumstances in which it came into being, could not be relied on without the prior authorisation of both parties; —
Moreover, the applicant considers that Clause 9 of the agreement cannot be classed as a restriction by object and that the Commission failed to show, as it was required to do, the existence of actual or potential restrictive effects which could constitute an infringement of the rules on competition. | — | The applicant considers that the decision is erroneous, since the grounds thereof contain omissions, imprecisions and errors in essential areas, which adversely affect the form of order which the applicant seeks; | — | The applicant further considers that the decision is based on insufficient evidence, in so far as the Commission does not furnish any evidence to weaken the evidence furnished by the applicant and from which it results that Clause 9 of the agreement contains a no-competition agreement which, given the circumstances in which it came into being, could not be relied on without the prior authorisation of both parties; | — | Moreover, the applicant considers that Clause 9 of the agreement cannot be classed as a restriction by object and that the Commission failed to show, as it was required to do, the existence of actual or potential restrictive effects which could constitute an infringement of the rules on competition. |
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| — | The applicant considers that the decision is erroneous, since the grounds thereof contain omissions, imprecisions and errors in essential areas, which adversely affect the form of order which the applicant seeks; | | | | | | |
| — | The applicant further considers that the decision is based on insufficient evidence, in so far as the Commission does not furnish any evidence to weaken the evidence furnished by the applicant and from which it results that Clause 9 of the agreement contains a no-competition agreement which, given the circumstances in which it came into being, could not be relied on without the prior authorisation of both parties; | | | | | | |
| — | Moreover, the applicant considers that Clause 9 of the agreement cannot be classed as a restriction by object and that the Commission failed to show, as it was required to do, the existence of actual or potential restrictive effects which could constitute an infringement of the rules on competition. | | | | | | |

| 2. | Second plea in law, alleging an infringement of the Treaty and of the law relating to its application:
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The applicant claims that the Commission’s decision infringes European Union law in the following ways:
(a)
It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; (b)
It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; (c)
It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; (d)
It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; (e)
It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; (f)
It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. | — | The applicant claims that the Commission’s decision infringes European Union law in the following ways:
(a)
It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; (b)
It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; (c)
It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; (d)
It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; (e)
It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; (f)
It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. | (a) | It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; | (b) | It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; | (c) | It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; | (d) | It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; | (e) | It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; | (f) | It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. |
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| — | The applicant claims that the Commission’s decision infringes European Union law in the following ways:
(a)
It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; (b)
It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; (c)
It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; (d)
It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; (e)
It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; (f)
It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. | (a) | It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; | (b) | It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; | (c) | It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; | (d) | It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; | (e) | It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; | (f) | It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. | | |
| (a) | It contains a manifest error in relation to the facts, the evidence and the adequacy of the evidence, in so far as the Commission wrongly assessed and interpreted the information submitted by the parties to the proceedings and, consequently, failed to draw the most plausible conclusions from the evidence before it; | | | | | | | | | | | | | | |
| (b) | It erroneously interprets Article 101 TFEU and thus infringes that provision, to the extent that the Commission wrongly and with no basis classed the parties as potential competitors in general on the markets allegedly covered by the no-competition agreement; that clause could not be qualified as a restriction by object without the Commission showing that any effects had been produced; | | | | | | | | | | | | | | |
| (c) | It infringes the duty to investigate and to give a ruling, in so far as the decision fails to evaluate or refute a series of relevant arguments submitted by the parties, in particular, in relation to the scope of the no-competition agreement; | | | | | | | | | | | | | | |
| (d) | It infringes the principle in dubio pro reo, in that the Commission deems certain facts which are unfavorable to the applicant to have been established, and in relation to which significant doubts exist and in respect of which the Commission itself is uncertain; | | | | | | | | | | | | | | |
| (e) | It infringes the principles by which the Commission is bound when imposing fines, as set out in paragraph 13 of the Guidelines which exist in that area, in so far as the Commission calculated the fine in relation to electronic communications markets in general, whether situated in the Iberian Peninsula or not, and also ignored the fact that, in any event, the alleged infringement did not continue after 29 October 2010; | | | | | | | | | | | | | | |
| (f) | It infringes the principle of proportionality, given the circumstances of the case and the criteria which must be observed when imposing fines. | | | | | | | | | | | | | | |

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