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Action brought on 15 April 2010 - Slovak Telekom v Commission

(Case T-171/10)

Language of the case: English

Parties

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

Defendant: European Commission

Form of order sought

annul the Commission Decision C(2010) 902 of 8 February 2010 relating to a proceeding pursuant to Articles 18(3) and 24(1) of Council Regulation 1/2003¹ (Case COMP/39523 - Slovak Telekom); and

order the Commission to pay the costs.

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision C(2010) 902 of 8 February 2010 ordering it, in accordance with Articles 18(3) and 24(1) of Council Regulation No 1/2003, to provide certain information in the framework of the Case COMP/39523 - Slovak Telekom relating to a proceeding under Article 102 TFUE and imposing periodic penalties in case of non compliance with the said decision.

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

Firstly, the applicant alleges an error of law concerning the Commission's powers to request information under Article 18(3) of Council Regulation No 1/2003 covering a period that predates the Slovak Republic's accession to the European Union. Prior to 1 May 2004, the Commission had no power to apply European Union law to conduct investigations in within the territory of the Slovak Republic. As a consequence, the Commission is not entitled to use the powers of investigation enshrined in Article 18(3) of Regulation 1/2003 to obtain information pertaining to that same period.

Secondly, the applicant claims that the contested decision should be annulled because it infringes the principle of procedural fairness enshrined in Article 41(1) of the Charter of Fundamental Rights². The Commission's investigation into Slovak Telekom's conduct during a period where the EU law was not applicable and Slovak Telekom was under no obligation to comply with these rules may be prejudicial to Slovak Telekom. The Commission could take this information into account in its assessment. Indeed, the contested decision makes clear that this is the Commission's intention.

Thirdly, the applicant contends that the contested decision should be annulled because it infringes the principle of proportionality. This principle is reflected in Article 18(3) of Council Regulation No 1/2003, according to which the Commission is empowered to require undertakings to provide all necessary information. In the Slovak Telekom case, however, 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, information or documents pertaining to the pre-accession period are not necessary in order to enable the Commission to assess whether Slovak Telekom's post-accession conduct complies with the EU 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.

² - Charter of Fundamental Rights of the European Union, OJ C 83 of 30 March 2010, p. 389.