# C_2019131EN.01005501.xml

| 8.4.2019 | EN | Official Journal of the European Union | C 131/55 |
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8.4.2019

EN

Official Journal of the European Union

C 131/55

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Action brought on 12 February 2019 — Lantmännen and Lantmännen Agroetanol/Commission

(Case T-79/19)

(2019/C 131/64)

Language of the case: English

Parties

Applicants: Lantmännen ek för (Stockholm, Sweden), Lantmännen Agroetanol AB (Norrköping, Sweden) (represented by: S. Perván Lindeborg, A. Johansson, lawyers, and R. Bachour, Solicitor)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Article 1 of Commission Decision C(2019) 743 final of 28 January 2019 on an objection to disclosure submitted by applicants pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29) (Case AT.40054 — Ethanol Benchmarks); and |
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annul Article 1 of Commission Decision C(2019) 743 final of 28 January 2019 on an objection to disclosure submitted by applicants pursuant to Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29) (Case AT.40054 — Ethanol Benchmarks); and

| — | order the defendant to pay costs. |
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order the defendant to pay costs.

Pleas in law and main arguments

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

| 1. | First plea in law, alleging that the contested decision infringes the rules of law governing the settlement procedure
  The applicants submit that the legal instruments which govern the settlement procedure should prevent disclosure of the concerned documents. In particular, Articles 10a, 15(1)b and 16a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004, (1) read together, should be interpreted as limiting disclosure of records from settlement discussions to the settlement submission itself, which may only be accessed under strict conditions. |
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1.

First plea in law, alleging that the contested decision infringes the rules of law governing the settlement procedure

The applicants submit that the legal instruments which govern the settlement procedure should prevent disclosure of the concerned documents. In particular, Articles 10a, 15(1)b and 16a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004, (1) read together, should be interpreted as limiting disclosure of records from settlement discussions to the settlement submission itself, which may only be accessed under strict conditions.

| 2. | Second plea in law, alleging that the contested decision infringes the principle of protection of legitimate expectations.
  The applicants submit that the defendant, through its consistent practice of excluding non-papers submitted in the context of settlement discussions from other parties’ access to the file, and through specific assurances to this effect in the context of the settlement discussions, would have made the applicants to entertain justified expectations with regard to the confidential treatment of the documents at issue. |
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2.

Second plea in law, alleging that the contested decision infringes the principle of protection of legitimate expectations.

The applicants submit that the defendant, through its consistent practice of excluding non-papers submitted in the context of settlement discussions from other parties’ access to the file, and through specific assurances to this effect in the context of the settlement discussions, would have made the applicants to entertain justified expectations with regard to the confidential treatment of the documents at issue.

| 3. | Third plea in law, alleging that the contested decision infringes the principles of equal treatment and equality of arms.
  The applicants submit that by disclosing the records of the applicants’ settlement discussions with the defendant to other parties, the defendant would have infringed the principle of equal treatment, by placing settling parties in a worse position than parties that have abandoned settlement discussion. The unwarranted expansion of the non-settling parties’ access to the file would also infringe the principle of equality of arms, by giving them an advantage in the inherently adversarial relationship between suspected co-infringers with regard to future contribution claims. |
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3.

Third plea in law, alleging that the contested decision infringes the principles of equal treatment and equality of arms.

The applicants submit that by disclosing the records of the applicants’ settlement discussions with the defendant to other parties, the defendant would have infringed the principle of equal treatment, by placing settling parties in a worse position than parties that have abandoned settlement discussion. The unwarranted expansion of the non-settling parties’ access to the file would also infringe the principle of equality of arms, by giving them an advantage in the inherently adversarial relationship between suspected co-infringers with regard to future contribution claims.

| 4. | Fourth plea in law, alleging that the contested decision infringes the principle of good administration.
  The applicants further submit that by permitting the disclosure of the contested information, the decision would allow the defendant to adopt a wholly inconsistent policy, in which the applicants are subjected to considerably less favourable treatment than the addressees of all prior defendants’ decisions. In doing so, the contested decision should be considered in breach of the applicants’ right to have their affairs handled ‘impartially, fairly and within a reasonable time’ by institutions of the European Union such as the defendant, and thus in violation of Article 41(1) of the Charter of Fundamental Rights of the European Union. |
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4.

Fourth plea in law, alleging that the contested decision infringes the principle of good administration.

The applicants further submit that by permitting the disclosure of the contested information, the decision would allow the defendant to adopt a wholly inconsistent policy, in which the applicants are subjected to considerably less favourable treatment than the addressees of all prior defendants’ decisions. In doing so, the contested decision should be considered in breach of the applicants’ right to have their affairs handled ‘impartially, fairly and within a reasonable time’ by institutions of the European Union such as the defendant, and thus in violation of Article 41(1) of the Charter of Fundamental Rights of the European Union.

| 5. | Fifth plea in law, alleging that, in the alternative, an incorrect legal categorisation in the statement of reasons was committed.
  By their fifth plea, which is alternative to the other pleas, the applicants submit that, even if the Court would ultimately agree with the defendant that the contested materials should be disclosed to other undertakings, the contested decision should still be annulled by virtue of errors in the statement of reasons.
  The defendant has applied Paragraph 35 of the settlement notice to give access to the contested materials. Paragraph 35 only refers to settlement submissions, and not settlement documents, which is the term used in the contested decision. In order to render the statement of reasons internally consistent, the contested decision should be redrafted so as to designate these materials as forming part of the settlement submission. |
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5.

Fifth plea in law, alleging that, in the alternative, an incorrect legal categorisation in the statement of reasons was committed.

By their fifth plea, which is alternative to the other pleas, the applicants submit that, even if the Court would ultimately agree with the defendant that the contested materials should be disclosed to other undertakings, the contested decision should still be annulled by virtue of errors in the statement of reasons.

The defendant has applied Paragraph 35 of the settlement notice to give access to the contested materials. Paragraph 35 only refers to settlement submissions, and not settlement documents, which is the term used in the contested decision. In order to render the statement of reasons internally consistent, the contested decision should be redrafted so as to designate these materials as forming part of the settlement submission.

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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).

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