27.8.2011   

EN

Official Journal of the European Union

C 252/40

Action brought on 30 June 2011 — CEEES y Asociación de Gestores de Estaciones de Servicio v Commission

(Case T-342/11)

2011/C 252/90

Language of the case: Spanish

Parties

Applicants: Confederación Española de Empresarios de Estaciones de Servicio (CEEES) (Spain) y Asociación de Gestores de Estaciones de Servicio (Madrid, Spain) (represented by: A Hernández Pardo and B Marín Corral, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the General Court should:

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annul the contested decision;

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as a consequence of the annulment, order the Commission to impose a fine or periodic penalty payments on REPSOL for having failed to comply with Article 9 of Regulation No 1/2003.

Pleas in law and main arguments

The present action has been brought against the decision of the European Commission of 28 April 2011, adopted in Case COMP/39461/CEEES AOP-REPSOL, the purpose of which was to determine whether the complaint lodged by the applicants on 30 May 2007 was admissible. That complaint was based on three main claims:

(a)

The existence of horizontal agreements of the Asociación de Operadores Petrolíferos (AOP) and its members which limited competition between them.

(b)

Infringement of Article 101 and Article 102 TFEU for fixing retail prices.

(c)

Failure on the part of REPSOL to comply with the Commission's decision of 12 April 2006 (2006/446/EC) relating to a proceeding pursuant to Article 81 of the EC Treaty and adopted pursuant to Article 9 of Regulation (EC) No 1/2003 (Case COMP/B-1/38.348 — Repsol CPP), and the [absence] of consequences following from that failure.

In the contested decision the Commission considers that there were not sufficient grounds to adopt against Repsol any of the measures provided for in Regulation (EC) No 1/2003 for the failure of parties to comply with their commitments.

The applicants rely on two pleas in law in support of their action.

1.

First plea in law, based on an infringement of Article 9 of Regulation (EC) No 1/2003, together with an infringement of the principle of direct effect of European Union law.

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The applicants claim, in particular, that, in the light of the findings of the National Competition Authority, the Commission cannot simply ignore REPSOL's failure to comply with its commitment to put an end to its practice of price-fixing. Indeed, the facts set out by the National Competition Authority in relation to the infringement of Article 101 TFEU should have been sufficient for the Commission to consider it well established that REPSOL had failed to comply with its commitments.

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The Commission's failure to intervene faced with a failure to comply with a commitment decision, on the basis that it has discretion in that regard, threatens the very essence of the mechanisms underlying the acceptance of commitments as an alternative solution to imposing sanctions and converts the Commission's power of discretion into an arbitrary power which could lead to a blatant denial of legal protection.

2.

Second plea in law, based on an infringement of Article 23(2)(c) and Article 24(1)(c) of Regulation (EC) No 1/2003.

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In the view of the applicants, faced with an infringement of Article 9 of Regulation (EC) No 1/2003, as is in this instance, the Commission should have imposed fines and periodic penalty payments as provided for in those provisions.