Appeal brought on 25 November 2013 by Compañía Española de Petróleos (CEPSA), S.A. against the judgment delivered on 16 September 2013 in Case T-497/07 CEPSA v Commission

(Case C-608/13 P)

Language of the case: Spanish

Parties

Appellant: Compañía Española de Petróleos (CEPSA), S.A. (represented by: O. Armengol i Gasull and J.M. Rodríguez Cárcamo, abogados)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

uphold the appeal and itself give a final judgment in the case, without referring the case back to the General Court;

set aside the contested judgment insofar as paragraph 1 of the operative part dismisses CEPSA’s action for annulment and paragraph 3 of the operative part orders CEPSA to pay the costs, uphold paragraph 2 of the operative part, rejecting the Commission’s claims and, accordingly, amend Decision C(2007)4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen Spain), reducing the amount of the fine to the extent that the Court of Justice considers appropriate; and

order the European Commission to pay the costs.

Pleas in law and main arguments

1.    Error of law (Second paragraph of Article 263 TFEU, in relation to Article 3 of Regulation No 1¹ determining the languages to be used by the European Economic Community). In the appellant’s view, infringement of the rules governing languages in the statement of objections in a competition proceeding is an infringement of an essential procedural requirement that must entail the annulment of the decision ultimately made in that proceeding, even if that infringement does not affect the undertaking’s rights of the defence. Since the General Court did not annul the contested decision in the judgment under appeal, as the appellant had claimed it should, it infringed the second paragraph of Article 263 TFEU, in relation to Article 3 of Regulation No 1 determining the languages to be used by the European Economic Community.

2.    Serious distortion of the facts in that it is stated in the judgment that the appellant freely accepted that the statement of objections be notified to it in a language not its own, and that the communication of the statement of the objections in that language did not affect its rights of the defence.

3.    Error of law (breach of the principle of proportionality). The judgment did not take into account the fact that the activity of production and distribution of penetration bitumen represented a very small percentage of the total turnover of the appellant, considered as a group of companies. The application of the parent company/subsidiary presumption does not preclude the application of the principle of proportionality, as traditionally interpreted by the case law of the Court of Justice (Parker Pen case ² ).

4.    Error of law (Article 31 of Council Regulation (EC) No 1/2003³ of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Regulation 1/2003), in accordance with Article 261 TFEU). The General Court refused to examine whether its delay in delivering the judgment under appeal breached the principle of the observance of a reasonable time-limit, thereby infringing Article 31 of Regulation No 1/2003, pursuant to Article 261 TFEU.

5.    Error of law (Article 41(1) and the second paragraph of Article 47 of the European Charter of Fundamental Rights ⁴ ). The General Court rejected CEPSA’s claim alleging breach of its right to have its case determined within a reasonable time, a right enshrined in Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6(1) of the European Convention on Human Rights. The present proceedings have lasted more than 11 years. The proceedings before the Commission lasted 5 years and, in the judicial procedure before the General Court, more than 4 years passed between the end of the written procedure and the opening of the oral procedure.

6.    Error of law (Article 87(2) of the Rules of Procedure of the General Court). The General Court ordered the appellant to pay all the costs of the action for annulment, despite the fact that the submissions made by the Commission in that action were also rejected in the General Court’s judgment. Therefore, the judgment under appeal infringes the rules on costs set out in Article 87(2) of the Rules of Procedure of the General Court.

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¹ OJ, English Special Edition 1952-1958, p. 59

² Case T-77/92 Parker Pen v Commission (1994) ECR II-549, paragraphs 94 and 95.

³ OJ 2003, L 1, p. 1.

⁴ OJ 2000, C 364, p. 1.