Appeal brought on 23 May 2014 by Schwenk Zement KG against the judgment of the General Court (Seventh Chamber) delivered on 14 March 2014 in Case T-306/11 Schwenk Zement KG v European Commission
(Case C-248/14 P)
Language of the case: German
Parties
Appellant: Schwenk Zement KG (represented by: M. Raible and S. Merz, Rechtsanwälte)
Other party to the proceedings: European Commission
Form of order sought
Set aside the judgment of the General Court (Seventh Chamber) of 14 March 2014 in Case T-306/11, in so far as the appellant’s application was thereby dismissed;
annul in its entirety Commission Decision C(2011) 2367 final of 30 March 2011 in Case COMP/39520 — Cement and related products, in accordance with the fourth paragraph of Article 263 TFEU, in so far as it concerns the appellant;
in the alternative to 2 above, refer the case back to the General Court for renewed determination in accordance with the judgment of the Court of Justice as to points of law;
in any event, order the Commission to pay the appellant’s costs in respect 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 the European Union (‘the General Court’) of 14 March 2014 in Case T-306/11, in so far as it affects the appellant. The judgment was served on SCHWENK Zement AG on 14 March 2014. By its judgment, the General Court upheld in part and dismissed in part the appellant’s action against Commission Decision C(2011) 2367 final of 30 March 2011 in a proceeding under Article 18(3) of Council Regulation (EC) No 1/2003 1 (Case 39520 — Cement and related products).
The appellant puts forward three grounds of appeal:
First, the appellant claims that the General Court failed to have regard to the principle of proportionality in its assessment of the conduct of the Commission. The General Court infringed EU law by disregarding the hierarchical element inherent in the principle of proportionality, whereby, if there is any doubt, the milder of two available approaches is to be applied. Referring merely to the best guarantee of obtaining information, the General Court deemed it permissible that action was taken directly against the appellant by means of a decision requiring information under Article 18(3) of Regulation No 1/2003. That is not sufficient for the purposes of the principle of proportionality.
Secondly, the General Court carried out only an inadequate examination of the particular case and thus failed to take into account the appellant’s substantive submissions. The General Court did not examine the individual case or take into account the special circumstances in relation to the appellant. Instead, the General Court proceeded on the basis of a large number of cement producers.
Thirdly, the appellant challenges the fact that, contrary to the obligation to state reasons, the General Court regarded the Commission’s formulaic explanations as sufficient. The General Court infringed the obligation to state reasons in two respects. First, it failed to have regard to the requirements relating to the obligation to state reasons arising from the second paragraph of Article 296 TFEU and Article 18 of Regulation No 1/2003 in respect of legal acts of the Commission. Secondly, the General Court disregarded its own requirements concerning the obligation to state reasons. Lastly, the General Court’s appraisal precluded any possibility of verifying whether the principle of proportionality had been observed. Should the General Court’s judgment prevail to that extent, all that would remain of the principle of proportionality in the context of investigative measures under Article 18 of Regulation No 1/2003 would be an empty shell.
____________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).