Appeal brought on 20 June 2017 by Agria Polska sp. z o.o., Agria Chemicals Poland sp. z o.o., Star Agro Analyse und Handels GmbH, and Agria Beteiligungsgesellschaft mbH against the judgment of the General Court of 16 May 2017 in Case T-480/15, Agria Polska and Others v Commission

(Case C-373/17 P)

Language of the case: Polish

Parties

Appellants: Agria Polska sp. z o.o., Agria Chemicals Poland sp. z o.o., Star Agro Analyse und Handels GmbH, and Agria Beteiligungsgesellschaft mbH (represented by: P. Graczyk and W. Rocławski)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

set aside in full the judgment of the General Court of 16 May 2017 in Case T-480/15;

give a final ruling in the dispute, that is to say, annul the Commission’s decision;

order the Commission to pay the costs.

Grounds of appeal and main arguments

The first ground of appeal alleges that the General Court infringed Article 101 TFEU and Article 102 TFEU, read in conjunction with the second sentence of Article 17(1) TEU, Article 7(2) of Commission Regulation (EC) No 773/2004, and Article 7(1) and (2) of Council Regulation (EC) No 1/2003, through its disregarding of obvious errors made by the Commission in its assessment of the likelihood of infringement of Article 101 TFEU or Article 102 TFEU, whether there was any EU interest in opening an investigation, and the scope of the necessary measures of inquiry.

In this first ground of appeal the appellants give details of the alleged infringements by the General Court, which consisted, inter alia, in: (i) the finding that the simultaneous nature of the appellants’ competitors’ activities (the bringing of complaints before the national bodies) was justified, solely and exclusively on the basis of the explanations put forward by those competitors; (ii) the failure to take account of the fact that the majority of the administrative decisions issued as a result of the competitors’ complaints and consequently imposing penalties on the appellants had been overruled; (iii) the failure to take account of the fact that complaints were also addressed to non-competent bodies and the Court’s confining itself to stating that, having regard to the risks of damage to the competitors’ reputation or of adverse effects on the original condition of the products traded, their informing the competent bodies could be legitimate; (iv) the confirmation of the Commission’s finding that there was insufficient EU interest in opening an investigation, notwithstanding the fact that the activities covered by the request concerned the territory of several Member States and undertakings operating on a number of markets; the incorrect finding that the bringing by the appellants of complaints before the national competition authority meant that that authority had exclusive competence; (v) the failure to take account of the fact that the scope of the necessary measures of inquiry and the need to employ substantial resources indicates that the Commission has competence; (vi) the finding that the conditions for so-called ‘vexatious proceedings’ were not met in the present case.

The second ground of appeal alleges infringement of the principle that full effect must be given to EU law (effet utile) and misinterpretation of that principle in relation to the practical application of Articles 101 TFEU and 102 TFEU, read in conjunction with Article 105 TFEU and Article 17(1) TEU, through: (i) the failure to take account of the role played by the Commission within the EU competition protection system and the acceptance that the Commission is not obliged to establish whether national bodies have the appropriate means by which to fulfil their tasks under Regulation No 1/2003; (ii) the failure to take account of the appellants’ arguments concerning the ineffectiveness of seeking redress before the Polish courts through private enforcement of the rules on competition, given the lack of suitable procedures and the fact that the statutory limitation periods under Polish law had expired; and (iii) the finding by the General Court that the appellants had failed to show that the Polish competition authority (the President of the Office of Competition and Consumer Protection) had no intention effectively to prosecute and penalise infringements, even though it was not disputed that the President of the Office of Competition and Consumer Protection had refused to open an investigation on the ground that the then legally binding one-year statutory limitation period had expired.

The third ground of appeal alleges infringement of the principle of effective judicial protection (Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms), of the right to an effective remedy before a tribunal (first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union) and of the right to good administration (Article 41(1) of the Charter of Fundamental Rights of the European Union) through: (i) confirmation of the Commission’s decision rejecting the appellants’ request, without stating whether an infringement had occurred, despite the national competition authority’s earlier refusal to prosecute the infringements in view of the formal requirements and the lack of a genuine possibility of redress in the form of damages through private enforcement; (ii) the incorrect finding that an infringement of the principle of effective judicial protection had not occurred, on the ground that the appellants could have lodged a complaint against the Commission’s decision rejecting the request; and (iii) the failure to take account of the fact that the right to effective judicial protection, to an effective remedy and to good administration also includes the right to have a case decided within a reasonable time, something which was not observed in the present case, because the Commission did not issue the decision refusing to open an investigation until four and a half years after the date on which the request had been submitted by the appellants.

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