Action brought on 22 December 2016 — Schwenk Zement v Commission

(Case T-907/16)

Language of the case: German

Parties

Applicant: Schwenk Zement KG (Ulm, Germany) (represented by: U. Soltész, M. Raible and G. Wecker, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

annul the contested decision;

order the Commission to pay the applicant’s costs.

Pleas in law and main arguments

The present action seeks the annulment of Commission Decision C (2016) 6591 final of 10 October 2016 (Case M.7878 — HeidelbergCement/Schwenk/Cemex Hungary/Cemex Croatia (OJ 2016 C 374, p. 1)).

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

First plea in law, alleging infringement of Article 1 of Regulation (EC) No 139/2004, ¹ read, as appropriate, in conjunction with Paragraph 147 of the Commission Consolidated Jurisdictional Notice under Regulation (EC) No 139/2004 (‘the Consolidated Jurisdictional Notice’)

In the context of the first plea in law, the applicant submits that the examination of the contested concentration does not come within the Commission’s competence. Had the applicant, correctly, not been regarded as a participating undertaking, the turnover thresholds indicated in Article 1 of Regulation (EC) No 139/2004 would not have been met.

Second plea in law, alleging a failure to state reasons

The applicant claims, in this regard, that, although the Commission did refer to the existence of the exceptional case in Paragraph 147 of the Consolidated Jurisdictional Notice, it failed to prove that the conditions actually existed for such an exceptional case.

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¹ Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).