# C_2020061EN.01005901.xml

| 24.2.2020 | EN | Official Journal of the European Union | C 61/59 |
| --- | --- | --- | --- |

24.2.2020

EN

Official Journal of the European Union

C 61/59

---

Action brought on 28 December 2019 — Design Light & Led Made in Europe and Design Luce & Led Made in Italy v Commission

(Case T-886/19)

(2020/C 61/75)

Language of the case: Italian

Parties

Applicants: Design Light & Led Made in Europe (Milan, Italy) and Design Luce & Led Made in Italy (Rome, Italy) (represented by: M. Maresca, D. Maresca and S. Pelleriti, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should annul Commission Decision C(2019) 7805, notified on 29 October 2019, by which the complaint of the applicants against Koninklijke Philips N.V. was rejected.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

| 1. | First plea in law, alleging infringement of Article 105 TFEU






  — | The applicants allege infringement of Article 105 TFEU in so far as the Commission unlawfully exercised the discretion conferred upon it to decide not to conduct a more extensive investigation in respect of the complaint made by them. In that regard, the applicants claim that the defendant proceeded from incorrect assessments of the evidence adduced in support of the allegation of infringement of Articles 101 and 102 TFEU, and that it did not give due consideration to the settled case-law in that regard. |
| --- | --- | --- |

1.

First plea in law, alleging infringement of Article 105 TFEU

—

The applicants allege infringement of Article 105 TFEU in so far as the Commission unlawfully exercised the discretion conferred upon it to decide not to conduct a more extensive investigation in respect of the complaint made by them. In that regard, the applicants claim that the defendant proceeded from incorrect assessments of the evidence adduced in support of the allegation of infringement of Articles 101 and 102 TFEU, and that it did not give due consideration to the settled case-law in that regard.

| 2. | Second plea in law, alleging the erroneous application of Article 102 TFEU






  — | According to the applicants, by the contested decision, the Commission, erroneously and without assessing any technical or legal aspects, considered the likelihood of establishing an infringement of Article 102 TFEU to be low, with reference to either the dominant position (in respect of the existence of Philips’ patent programme and Philips’ conduct independently of competitors and suppliers) or the abusive practices consisting in both discriminatory pricing and imposing licences due to alleged but never proved infringements of the patent system. |
| --- | --- | --- |

2.

Second plea in law, alleging the erroneous application of Article 102 TFEU

—

According to the applicants, by the contested decision, the Commission, erroneously and without assessing any technical or legal aspects, considered the likelihood of establishing an infringement of Article 102 TFEU to be low, with reference to either the dominant position (in respect of the existence of Philips’ patent programme and Philips’ conduct independently of competitors and suppliers) or the abusive practices consisting in both discriminatory pricing and imposing licences due to alleged but never proved infringements of the patent system.

| 3. | Third plea in law, alleging the erroneous application of Article 101 TFEU






  — | In that regard, the applicants submit that the Commission erroneously assessed the evidence adduced in support of the allegation of infringement of Article 101 TFEU in so far as it concluded that it is unlikely that the PLP (‘Patent Licensing Program’) and the licensing agreements between Philips, Osram and Zumtobel are an agreement or concerted practice within the meaning of that provision, that it accepted, without verifying, that the conduct is unilateral (which is nevertheless an admission on its part of an infringement of Article 102 TFEU), and failed to take into account that even a unilaterally concluded agreement such as the one in question could conceal a prohibited agreement. In addition, it does not fall to the bodies making the complaint to show actual damage caused to the suppliers’ market, as it is sufficient for them to adduce evidence on the basis of which the Commission could have and should have conducted further investigations. |
| --- | --- | --- |

3.

Third plea in law, alleging the erroneous application of Article 101 TFEU

—

In that regard, the applicants submit that the Commission erroneously assessed the evidence adduced in support of the allegation of infringement of Article 101 TFEU in so far as it concluded that it is unlikely that the PLP (‘Patent Licensing Program’) and the licensing agreements between Philips, Osram and Zumtobel are an agreement or concerted practice within the meaning of that provision, that it accepted, without verifying, that the conduct is unilateral (which is nevertheless an admission on its part of an infringement of Article 102 TFEU), and failed to take into account that even a unilaterally concluded agreement such as the one in question could conceal a prohibited agreement. In addition, it does not fall to the bodies making the complaint to show actual damage caused to the suppliers’ market, as it is sufficient for them to adduce evidence on the basis of which the Commission could have and should have conducted further investigations.

---