Action brought on 4 April 2011 - Si.mobil v Commission

(Case T-201/11)

Language of the case: English

Parties

Applicants: Si.mobil telekomunikacijske storitve d.d. (Ljubljana, Republic of Slovenia) (represented by: P. Alexiadis and E. Sependa, Solicitors)

Defendants: European Commission

Form of order sought

Annul the European Commission Decision C(2011) 355 final of 24 January 2011 in Case No COMP/39.707 Si.mobil/Mobitel; and

Order the defendant to pay applicant's costs.

Pleas in law and main arguments

By means of its application the applicant seeks, pursuant to Article 263 TFEU, the annulment of European Commission Decision C(2011) 355 final of 24 January 2011 in Case No COMP/39.707 Si.mobil/Mobitel, regarding the rejection of a complaint brought under Article 102 TFEU by it on 14 August 2009 for the allegedly abusive practices of Mobitel at the retail and wholesale functional levels of competition across a range of mobile communications markets.

In support of the action, the applicant relies on two pleas in law.

1.    First plea in law, alleging that the Commission manifestly erred in its application of the jurisdictional allocation rules set forth in Council Regulation (EC) No 1/2003¹ and in the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43), as:

-    By adopting the contested decision, the Commission has failed to ensure that an effective application of European Union law will take place, thereby ignoring the overriding public policy dictates to which Council Regulation (EC) No 1/2003 is subject, while also ignoring its own self-imposed rules contained in the Commission's Notice on cooperation within the Network of Competition Authorities and the relevant case-law;

-    The Commission has ignored its obligations under the Notice on cooperation within the Network of Competition Authorities, since it has failed to intervene when an "National Competition Authority is unduly drawing out proceedings", which is the case where the two-year deadline imposed by Slovenian law has expired without the National Competition Authority having even sent a final Statement of Objections. Furthermore, the Commission has ignored evidence overwhelmingly demonstrating that it is the "best placed" authority to adjudicate on the causes of action at issue. In the circumstances, it is highly unlikely that the Slovenian Competition Authority is "able to bring the infringement to an ending" in a reasonable and timely manner. By contrast, in the case at hand, it is clear that the "Community provisions [...] may be[...] more effectively applied by the Commission.".

2.    Second plea in law, alleging that the Commission manifestly erred in its application of the balancing exercise set forth in the Automec case-law², as:

-    The applicant considers that the Commission's discretion in deciding whether or not to assume jurisdiction under the Automec case-law is not unfettered. To this end, the applicant has submitted a large body of evidence demonstrating that there exists a "Community interest" in the Commission exercising jurisdiction over Si.mobil's claims, which the Commission has unduly ignored. Moreover, the Commission has ignored its own Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7), since both types of Competition law infringements (margin squeeze and predatory pricing) to which the applicant is subject are envisaged in the above mentioned document as an enforcement priority for the Commission, and there is an increasing interest in clarifying the ways in which the Commission applies those doctrines, especially in the mobile sector where such precedents have yet to be established.

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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)

² - Case T-24/90 Automec v Commission, [1992] ECR II-2223