Appeal brought on 5 March 2021 by Fakro sp. z o.o. against the judgment of the General Court delivered on 16 December 2020 in Case T-515/18, Fakro v Commission

(Case C-149/21 P)

(2021/C 182/63)

Language of the case: Polish

Parties

Appellant: Fakro sp. z o.o. (represented by: A. Radkowiak-Macuda and Z. Kiedacz, radcy prawni)

Other parties to the proceedings: European Commission and Republic of Poland

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court in part, that is to say, point 1 of the operative part of that judgment;

— give a final ruling in the case and annul the Commission’s decision;

— order the Commission to pay the costs of the proceedings before the Court of Justice.

Grounds of appeal and main arguments

In its first ground of appeal, which is divided into two substantive parts, the appellant argues that the General Court infringed Article 105(1) TFEU, read in conjunction with Article 102 TFEU, by assuming that:

1. the Commission did not commit a manifest error by assessing the Union interest in further investigation of the case as low and rejecting the complaint on grounds of low priority. The ground is divided into four specific complaints concerning the errors in law which the General Court made by assuming that: (i) the Commission did not commit a manifest error by stating that there is only a low likelihood of establishing the existence of the alleged infringement; (ii) the Commission did not commit a manifest error by stating that the scope of the investigation required would be disproportionate in view of the likelihood of establishing the existence of the alleged infringement; (iii) the Commission did not commit a manifest error by failing to assess the impact of the alleged infringement on the functioning of the common market; and (iv) conditions for assessing the Union interest other than those considered by the Commission are inadmissible;

2. the two roof window distribution channels (investment sales and other sales) do not constitute equivalent transactions.

In its second ground of appeal, which is divided into two parts, the appellant argues that the General Court infringed the right to good administration (Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’)), the right to effective judicial protection, and the right to an effective remedy before a tribunal (Article 47 of the Charter), as well as Article 102 TFEU through the misinterpretation of that provision, whereby it assumed that:

1. the duration of the proceedings before the Commission and the failure to issue a substantive decision did not have an impact on the possibility for Fakro to assert its fundamental rights;

2. there was no infringement of the principle of impartiality by the Commission in the case, and, as a result, the finding that there was a lack of Union interest in investigation of the case was not based on grounds that were discriminatory.

In its third ground of appeal, the appellant argues that the General Court erred in law by failing to give full effect (effet utile) to Article 102 TFEU, read in conjunction with Article 17(1) TEU and Article 105 TEU, the principle of good administration, and the right to effective judicial protection, by assuming that the Commission did not have exclusive competence to conduct the proceedings and that the Commission was not obliged to analyse Fakro’s situation with regard to the possibility for it effectively to assert the rights covered by the complaint submitted to the Commission, whilst Fakro, in order to assert its rights, was obliged to bring, in parallel with the proceedings conducted before the Commission, legal actions before the national competition authorities as well as before the courts in the territories of the Member States where the alleged infringements took place.

In its fourth ground of appeal, the appellant argues that the General Court infringed Article 296 TFEU through the misinterpretation of that provision and by its assumption that the Commission did not fail to fulfil its obligation to provide a proper statement of reasons in respect of the fighting brands and investment rebates.