# C_2020027EN.01006102.xml

| 27.1.2020 | EN | Official Journal of the European Union | C 27/61 |
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27.1.2020

EN

Official Journal of the European Union

C 27/61

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Action brought on 15 November 2019 — Sped-Pro S.A. v Commission

(Case T-791/19)

(2020/C 27/61)

Language of the case: Polish

Parties

Applicant: Sped-Pro S.A. (Warsaw, Poland) (represented by: Małgorzata Kozak, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the European Commission’s decision C(2019) 6099 final of 12 August 2019 (Case AT.40459) rejecting the applicant’s complaint under Article 7(2) of Regulation No 773/2004 (1) and |
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annul the European Commission’s decision C(2019) 6099 final of 12 August 2019 (Case AT.40459) rejecting the applicant’s complaint under Article 7(2) of Regulation No 773/2004 (1) and

| — | order the European Commission to pay the costs of the proceedings. |
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order the European 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 the infringement of essential procedural requirements
  The applicant submits that the Commission infringed Article 7(1) and (2) of Regulation No 1/2003 (2) and Article 7(1) of Regulation No 773/2004, read in conjunction with Article 41(1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union by infringing the principle of acting within a reasonable time, given that the decision was adopted almost two years after the notification of 13 September 2017 informing the applicant of the Commission’s intention to reject the complaint, which had an impact on the outcome of the proceedings. The applicant also alleges that the Commission infringed the applicant’s right to the examination of its case, and also failed to give detailed reasons for the rejection of its complaint, which is reflected in the general content of the notification of 13 September 2017 informing it of the Commission’s intention to reject the complaint and in the laconic statement of reasons for the contested decision. |
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1.

First plea in law, alleging the infringement of essential procedural requirements

The applicant submits that the Commission infringed Article 7(1) and (2) of Regulation No 1/2003 (2) and Article 7(1) of Regulation No 773/2004, read in conjunction with Article 41(1) and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union by infringing the principle of acting within a reasonable time, given that the decision was adopted almost two years after the notification of 13 September 2017 informing the applicant of the Commission’s intention to reject the complaint, which had an impact on the outcome of the proceedings. The applicant also alleges that the Commission infringed the applicant’s right to the examination of its case, and also failed to give detailed reasons for the rejection of its complaint, which is reflected in the general content of the notification of 13 September 2017 informing it of the Commission’s intention to reject the complaint and in the laconic statement of reasons for the contested decision.

| 2. | Second plea in law, alleging infringement of the Treaties.
  The applicant submits that the Commission infringed the right to effective judicial protection and thus Article 2 TEU, read in conjunction with the second subparagraph of Article 19(1) TEU and with Article 47 of the Charter of Fundamental Rights of the European Union, in finding that the President of the Urząd Ochrony Konkurencji i Konsumentów (Office for the protection of competition and consumers, Poland) ‘seems to be a body which is particularly appropriate to examine the issues raised ... in the complaint’ (point 21 of the contested decision), thus at least failing to have regard to the reasonable doubts as to the upholding of the rule of law in Poland and, in connection with this, the independence of the courts and of the President of the Office for the protection of competition and consumers. The Commission failed to have regard, inter alia, to the issue of the reorganisation of the judicial system in Poland and to the fact that cases in the field of competition and consumer protection are examined by the new Chamber of Extraordinary Control and Public Affairs in the Sąd Najwyższy (Supreme Court, Poland), whose method of appointment is similar to that of the disciplinary chamber. |
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2.

Second plea in law, alleging infringement of the Treaties.

The applicant submits that the Commission infringed the right to effective judicial protection and thus Article 2 TEU, read in conjunction with the second subparagraph of Article 19(1) TEU and with Article 47 of the Charter of Fundamental Rights of the European Union, in finding that the President of the Urząd Ochrony Konkurencji i Konsumentów (Office for the protection of competition and consumers, Poland) ‘seems to be a body which is particularly appropriate to examine the issues raised ... in the complaint’ (point 21 of the contested decision), thus at least failing to have regard to the reasonable doubts as to the upholding of the rule of law in Poland and, in connection with this, the independence of the courts and of the President of the Office for the protection of competition and consumers. The Commission failed to have regard, inter alia, to the issue of the reorganisation of the judicial system in Poland and to the fact that cases in the field of competition and consumer protection are examined by the new Chamber of Extraordinary Control and Public Affairs in the Sąd Najwyższy (Supreme Court, Poland), whose method of appointment is similar to that of the disciplinary chamber.

| 3. | Third plea in law, also alleging infringement of the Treaties
  The applicant submits that the Commission infringed Article 102 TFEU, read in conjunction with the second sentence of Article 17(1) TFEU, with Article 7(2) of Regulation No 773/2004 and with Article 7(1) and (2) of Council Regulation (EC) No 1/2003, in committing a manifest error in the assessment of the interest of the European Union and the delimitation of the relevant market. The Commission held that the market on which the alleged infringement had been committed was ‘essentially limited to the national rail market, even if the alleged infringement might also concern undertakings registered abroad’. It also submits that the Commission failed to ensure the full effectiveness (‘effet utile’) of Article 102 TFEU. |
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3.

Third plea in law, also alleging infringement of the Treaties

The applicant submits that the Commission infringed Article 102 TFEU, read in conjunction with the second sentence of Article 17(1) TFEU, with Article 7(2) of Regulation No 773/2004 and with Article 7(1) and (2) of Council Regulation (EC) No 1/2003, in committing a manifest error in the assessment of the interest of the European Union and the delimitation of the relevant market. The Commission held that the market on which the alleged infringement had been committed was ‘essentially limited to the national rail market, even if the alleged infringement might also concern undertakings registered abroad’. It also submits that the Commission failed to ensure the full effectiveness (‘effet utile’) of Article 102 TFEU.

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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 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

(2)  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 (OJ L 1, 4.1.2003, p. 1).

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