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Action brought on 13 November 2009 - Slovak Telekom v Commission

(Case T-458/09)

Language of the case: English

Parties

Applicant: Slovak Telekom a.s. (Bratislava, Slovak Republic) (represented by: M. Maier, L. Kjølbye and D. Geradin, lawyers)

Defendant: Commission of the European Communities

Form of order sought

Annul the contested decision;

Order the Commission to pay the costs.

Pleas in law and main arguments

In the present case, the applicant seeks the annulment of Commission decision C(2009) 6840 of 3 September 2009 ordering it, in accordance with Articles 18(3) and 24(1) of Council Regulation 1/2003¹ to provide the information in the framework of the Case COMP/39523 - Slovak Telekom relating to a proceeding under Article 82 EC and imposing the periodic penalties in case of non compliance with the decision.

In support of its claims the applicant puts forward three pleas in law.

First, the applicant argues that the contested decision is in breach of Article 18(3) of Regulation 1/2003 regarding the information covering a period that predates the Slovak Republic's accession to the EU. In the applicant's opinion, prior to this date the Commission did not have power to apply the EC law to conduct engaged in within the territory of the Slovak Republic; as a consequence, it is not entitled to use its power of investigation enshrined in this article to obtain information pertaining to that same period.

Second, applicant claims that the contested decision infringes the principle of procedural fairness enshrined in Article 41(1) of the Charter of Fundamental Rights. The Commission's investigation into the applicant's conduct during a period where EC law was not applicable and it was under no obligation to comply with these rules may be prejudicial to the applicant.

Third, the applicant contends that the contested decision infringes the principle of proportionality as reflected in Article 18(3) of Regulation 1/2003, according to which the Commission is empowered to require undertakings to provide all necessary information. In this regard, the applicant claims that the Commission failed to establish the required link between the requested pre-accession information and the allegedly illegal conduct after 1 May 2004. As a result, in the applicant's opinion, information or documents pertaining to the pre-accession period are not necessary in order to enable the Commission to assess whether the applicant's post-accession conduct complies with the EC law.

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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 L 1, p. 1