Appeal brought on 16 August 2018 by České dráhy a.s. against the judgment of the General Court (Eighth Chamber) delivered on 20 June 2018 in Case T-325/16 České dráhy v Commission

(Case C-538/18 P)

(2018/C 392/14)

Language of the case: Czech

Parties

Appellant: České dráhy a.s. (represented by: K. Muzikář and J. Kindl, advokáti)

Other party to the proceedings: European Commission

Subject matter

Appeal against the judgment of the General Court of 20 June 2018 in Case T-325/16 České dráhy v Commission.

By that judgment the General Court allowed in part the action brought under Article 263 TFEU in which České dráhy sought the annulment of Commission Decision C(2016) 2417 final of 18 April 2016 in Case AT.40156 — Falcon. The General Court annulled the contested decision of the Commission ‘in so far as it concerns routes other than the Prague-Ostrava route and conduct other than the alleged predatory pricing practices’. The General Court dismissed the action as to the remainder. It also ordered each party to bear its own costs.

Form of order sought

— set aside the judgment of the General Court of the European Union of 20 June 2018 in Case T-325/16 České dráhy v European Commission, EU:T:2018:368, in so far as the General Court dismissed the action and in so far as the General Court decided on costs;

— annul in its entirety Commission Decision C(2016) 2417 final of 18 April 2016 in Case AT.40156 — Falcon;

— order the European Commission to pay the costs of the proceedings in Case T-325/16 and those in connection with the appeal proceedings.

Grounds of appeal and main arguments

1. First ground of appeal: the General Court incorrectly concluded that the contested decision of the Commission had a sufficient statement of reasons. České dráhy contends that the European Commission did not give sufficiently precise and detailed reasons for the contested decision, and thus did not comply with the requirements following from the case-law of the Court of Justice. The General Court decided wrongly, in that it none the less did not annul — in its entirety — the contested decision of the Commission.

2. Second ground of appeal: the General Court failed to take into account that before adopting the contested decision the Commission disregarded a large amount of evidence that České dráhy was not acting unlawfully. České dráhy contends that the Commission did not, before adopting the contested decision, address the facts showing that the conduct of České dráhy was not unlawful, and adopted the contested decision (contrary to the principle of proportionality) solely on the basis of certain isolated items of evidence taken out of context. The General Court decided wrongly, in that it none the less did not annul — in its entirety — the contested decision of the Commission.

3. Third ground of appeal: the General Court incorrectly assessed the conditions of application of Article 102 TFEU. České dráhy contends that on the basis of Regulation No 1/2003 the Commission may only investigate conduct which could be an infringement of Article 101 and/or Article 102 TFEU. The Commission ordered the inspection at the seat of České dráhy because it suspected an infringement of Article 102 TFEU. That provision can only apply where (a) an undertaking may have abused a dominant position in the whole or a substantial part of the internal market and (b) the alleged abusive conduct could substantially affect trade between Member States. České dráhy considers that the General Court incorrectly concluded that those conditions were satisfied in the present case.