EN Official Journal of the European Union C 223/10

Appeal brought on 22 May 2014 by HeidelbergCement AG against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-302/11 HeidelbergCement AG v European Commission

(Case C-247/14 P)

2014/C 223/15

Language of the case: German

Parties

Appellant: HeidelbergCement AG (represented by: U. Denzel, C. von Köckritz, P. Pichler, Rechtsanwälte)

Other party to the proceedings: European Commission

Form of order sought

1. Set aside the judgment under appeal;

2. annul Commission Decision C(2011) 2361 final (COMP/39520 — Cement and related products) of 30 March 2011, pursuant to the fourth paragraph of Article 263 TFEU, in so far as it concerns the appellant;

3. in the alternative to the claim at 2 above, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice as to points of law;

4. in any event order the Commission to pay the appellant’s costs of the proceedings before the General Court and the Court of Justice.

Pleas in law and main arguments

The appeal has been brought against the judgment of the General Court of 14 March 2014 in Case T-302/11. The judgment was served on the appellant on 14 March 2014. By its judgment, the General Court dismissed the action brought by the appellant against Commission Decision C(2011) 2361 final of 30 March 2011 in case COMP/39520 — Cement and related products.

The appellant puts forward seven grounds of appeal:

First, the General Court did not adequately examine, and erroneously applied, the requirements relating to the determination of the purpose of the request for information under Article 18(3) of Regulation No 1/2003. (1) It did not sufficiently investigate the text of the decision requiring information and failed to have regard to the requirements relating to the Commission’s obligation to state reasons.

Secondly, the General Court erred in law in proceeding on the assumption that the requirements relating to the obligation to state reasons under the second paragraph of Article 296 TFEU could be limited by Article 18(3) of Regulation No 1/2003. Accordingly, the General Court did not examine the complaint that there had been a failure to state reasons for the choice of a decision to require information in the case. Nor did the General Court adequately examine the complaint regarding the failure to state reasons in respect of the fixing of a time-limit. The text of the reasons for its decision is identical to text that is tailored to parallel proceedings and to a substantively different complaint put forward in that case.

Thirdly, the General Court’s examination of ‘necessity’ for the purposes of the first sentence in Article 18(3) of Regulation No 1/2003 was inadequate, in that it considered a detailed explanation of the evidential position by the Commission to be superfluous. In addition, its requirements regarding the relationship between reasonable grounds for suspicion and the need for the information requested were wrong. Furthermore, it misinterpreted the first sentence of Article 18(3) of Regulation No 1/2003, as it did not deem it necessary to examine the appropriateness of the information requested, leading, moreover, to the undermining of the right to seek a review that arises from the third sentence of Article 18(3) of Regulation No 1/2003.

Fourthly, the General Court wrongly treated the first sentence of Article 18(3) of Regulation No 1/2003 as the legal basis for the Commission’s request for the preparation, compiling and processing of information which the appellant did not have at its disposal in that form.

Fifthly, the General Court rejected the complaint relating to the overly short deadline for reply on the grounds of the appellant’s economic power — viewed in the abstract — alone, and thus on the basis of insufficient and inconsistent reasoning.

Sixthly, the General Court disregarded the criterion of the certainty of EU legal acts in that it considered the decision requiring information to be sufficiently certain, even though the General Court itself found that the questions contained in it were formulated in vague terms. In addition, it failed to examine the specific complaints of lack of certainty and undermined the right to seek a review (see the third sentence of Article 18(3) of Regulation No 1/2003).

Seventhly, the General Court infringed the appellant’s rights of defence, as it considered the appellant obliged to carry out assessments which could be used by the Commission in the context of an economic analysis to prove a suspected infringement of EU cartel law.

(1) 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 2003 L 1, p. 1).