Action brought on 10 June 2011 - Buzzi Unicem v Commission

(Case T-297/11)

Language of the case: Italian

Parties

Applicant: Buzzi Unicem (Casale Monferrato, Italy) (represented by: C. Osti and A. Prastaro, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the Contested Decision in its entirety for failure to state reasons, or to state adequate reasons, and the consequent breach of the applicant's rights of defence and the principle of due process;

annul the Contested Decision in its entirety for excess and abuse of powers and for the consequent reversal of the burden of proof;

annul the Contested Decision, in whole or in part, as being ultra vires with respect to the powers conferred on the Commission under Article 18 [of Regulation No 1/2003]; and for breach of the principles of proportionality and due process, and failure to hear argument on an inter partes basis, in breach of the Commission's 'Best Practices';

in any event, order the Commission to pay the costs.

Pleas in law and main arguments

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

1.    First plea in law, alleging failure to state reasons, or to state adequate reasons; breach of the rights of the defence; and breach of the principle of due process

the applicant objects that the Contested Decision fails to fulfil the Commission's duty to state reasons and entails breach of the applicant's rights of defence in that it does not provide, or provides in a manner that is wholly inadequate, information regarding the subject and purpose of the investigation.

2.    Second plea in law, alleging excess and abuse of powers, and reversal of the burden of proof

the applicant claims that the Commission exceeded and abused its powers in that the request for information should be used to verify evidence already in its possession, not for compiling - in the absence of evidence - a comprehensive database on the market. That also amounts to a breach of the presumption of innocence and entails a complete reversal of the burden of proof.

3.    Third plea in law, alleging that the Commission acted ultra vires with respect to the powers conferred upon it under Article 18 of Regulation No 1/2003

the applicant argues that the pattern of requests from the Commission is in excess of the powers conferred under Article 18, in accordance with which the Commission may request only information which is necessary as relating to the facts of which the undertaking can be aware and communicating to it the relevant documents in its possession.

4.    Fourth plea in law, alleging breach of the principle of proportionality and that the Commission acted ultra vires in relation to Article 18

the applicant claims that the Contested Decision exceeds the limits laid down in Article 18 concerning necessity and breaches the principle of proportionality in that (i) it requests information which is unnecessary; (ii) it did not choose, from among a number of suitable measures, the course of action which would entail the least inconvenience for the undertaking; and (iii) the requests are excessively burdensome for the applicant.

5.    Fifth plea in law, alleging breach of the Commission's 'Best Practices' and the principle of sound administration

the applicant claims that the Commission acted in breach of its own 'Best Practices' in that it first asked the applicant to comment on the draft Contested Decision but did not then take any account of those comments; also in that the Contested Decision differs significantly from the draft. Furthermore, the applicant claims that the constant amendments to the requests constitute clear evidence of the lack of diligence which characterised the Commission's conduct, in breach of the principle of sound administration.

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