Case T-292/11: Action brought on 9 June 2011 — Cemex and Others v Commission
Date: 2011-06-09
Institutions: General Court
Subjects: European Commission, access to information, competition law, disclosure of information, infringement of EU law, tax inspection








C_2011238EN.01002301.xml










13.8.2011   


EN


Official Journal of the European Union


C 238/23





Action brought on 9 June 2011 — Cemex and Others v Commission
(Case T-292/11)
2011/C 238/42
Language of the case: Spanish

Parties


Applicants: Cemex S.A.B. de C.V. (Monterrey, Mexico), New Sunward Holding BV (Amsterdam, The Netherlands), Cemex España, SA (Madrid, Spain), CEMEX Deutschland AG (Düsseldorf, Germany), Cemex UK (Egham, United Kingdom), CEMEX Czech Operations s.r.o. (Prague, Czech Republic), Cemex France Gestion (Rungis, France), CEMEX Austria AG (Langenzersdorf, Austria) (represented by: J. Folguera Crespo, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:






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annul Article 1 of the Commission's decision of 30 March 2011; in the alternative, partially annul that article so as to exonerate the applicants from the requirement to provide information in response to the questions in Annex I to the decision with respect to all aspects which go beyond the limits of the rules and principles applicable to the Commission under European Union law;










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order the Commission to pay the costs.





Pleas in law and main arguments

The action has been brought against the Commission's decision of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003, adopted in relation to Case COMP/39.520 — Cement and related products.
In support of their action, the applicants rely on six pleas in law.






1.


First plea in law, alleging an infringement of Article 18 of Regulation (EC) No 1/2003.






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The applicants submit in this regard that the Commission went beyond the limits of its powers laid down in that provision and the case-law of the Court of Justice, even going as far as requesting information which it knew that the applicants did not hold. Moreover, that request required the applicants not only to produce, but also to process, millions of items of data of an economic nature, thereby transferring to them the investigatory role incumbent upon the Commission.














2.


Second plea in law, alleging an infringement of Article 18 of Regulation (EC) No 1/2003.






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According to the applicants, the Commission required information to be provided which was not necessary for the investigation of the alleged restrictive practices identified in the contested decision. That information bears no relation to the purpose of the investigation, is public information, or is information which has already been provided in response to earlier requirements, or amounts to data processing.














3.


Third plea in law, alleging an infringement of the principle of proportionality.






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The applicants claim in this respect that the Commission requested the applicants to provide information whose collection or processing was not only unnecessary in many instances but also led to their incurring an excessive and disproportionate burden. Moreover, an extremely short time limit was imposed within which to reply and their applications to have that time limit extended were rejected.














4.


Fourth plea in law, based on an infringement of Article 296 TFEU in that the Commission has not given sufficient reasons regarding the necessity and proportionality of the requested information.










5.


Fifth plea in law, based on an infringement of the principle of legal certainty, in so far as the wording of the contested decision is uncertain and imprecise.










6.


Sixth plea in law, based on a failure to have regard to Article 3 of Regulation (EEC) No 1/1958 which lays down the language regime of the European Economic Community.






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The applicants submit in this regard that the Commission refused to transmit the contested decision to the subsidiaries to which it applies in the language of the Member States which have jurisdiction over them, thereby knowingly making the task of data collection more difficult.