EN Official Journal of the European Union C 82/16

Appeal brought on 28 January 2009 by Transportes Evaristo Molina SA against the judgment delivered on 14 November 2008 in Case T-45/08 Transportes Evaristo Molina SA v Commission of the European Communities

(Case C-36/09 P)

(2009/C 82/30)

Language of the case: Spanish

Parties

Appellant: Transportes Evaristo Molina SA (represented by: A. Hernández Pardo, S. Beltrán Ruiz and L. Ruiz Ezquerra, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

— annul the judgment of the Court of First Instance of 14 November 2008 in Case T-45/08 in its entirety and, if the Court of Justice considers that it has sufficient evidence to give a ruling on the substance of the appeal brought against the Court of First Instance: — Prior to the assessment of the substance of the case, declare relevant and order the production of the evidence requested by Transportes Evaristo Molina SA in its application for annulment; and — Uphold the submissions put forward by Transportes Evaristo Molina SA before the Court of First Instance: annulment of the Commission decision of 12 April 2006 (1) relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/B-1/38.348 — Repsol CPP) on the grounds that it infringes Article 9 of Regulation No 1/2003 (2), and the principles of Community law laid down in the action for annulment, Article 81 EC and the exemption regulations for the categories which are set out in Article 81(3), Regulation (EEC) No 1984/83 (3) and Regulation (EC) No 2790/99 (4).

— order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

(a) The ‘dies a quo’ (day from which) the starting point for the limitation period laid down in Article 230 EC is calculated is the day on which the contested measure (Commission decision of 12 April 2006 (5) relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/B-1/38.348 — Repsol CPP) directly and individually affected TRANSPORTES EVARISTO MOLINA SA.

(b) If the Court considers that the action for annulment brought by TRANSPORTES EVARISTO MOLINA SA is time-barred, the applicant submits that that should be regarded as excusable since the conduct of the Commission caused confusion on the applicant's part.

(1) Commission Decision 2006/446/of 12 April 2006 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006 L 176, p. 104).

(2) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC]of the Treaty (OJ 2003 L 1, p. 1).

(3) Commission Regulation (EEC) No 1984/83 of 22 June 1983 on the application of Article 85(3) of the Treaty to categories of exclusive purchasing agreements (OJ 1983 L 173, p. 5).

(4) Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices.

(5) Commission Decision 2006/446/of 12 April 2006 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/B-1/38.348 — Repsol CPP) (summary published in OJ 2006 L 176, p. 104).