Appeal brought on 24 August 2023 by Polwax S.A. against the judgment of the General Court delivered on 14 June 2023 in Case T-585/20, Polwax v Commission

(Case C-541/23 P)

Language of the case: Polish

Parties

Appellant: Polwax S.A. (represented by: M. Taborowski and P. Hoffman, lawyers)

Other parties to the proceedings: European Commission, ORLEN S.A., previously Polski Koncern Naftowy Orlen S.A.

Form of order sought

The appellant claims that the Court should:

set aside in its entirety the judgment of the General Court of the European Union of 14 June 2023 in Case T-585/20, Polwax v Commission;

annul the decision of the European Commission dated 14 July 2020 and issued in Case M.9014, ¹ and order that the European Commission bear its own costs and pay the costs of the appellant, and that the intervener bear its own costs;

in the alternative, if the Court of Justice considers that the state of the proceedings does not allow it to give final judgment,

refer the case back to the General Court of the European Union for re-consideration and reserve the costs.

Grounds of appeal and main arguments

The appellant puts forward nine grounds in support of its appeal:

Under the first ground, the appellant claims that the General Court committed an error of law and a manifest error of assessment and distorted the appellant’s position by stating that the appellant, as an interested party, bore the obligation to provide ‘compelling indications’ that there was a possible problem in terms of competition in a situation where that criterion should not have been applied, and furthermore by requiring from the appellant ‘compelling indications’ that the products investigated by the Commission in the upstream market (the market for slack wax) were not substitutable on the demand side or on the supply side, whereas such obligations do not follow, in relation to third parties, from Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, and by finding that the information provided by the appellant in the course of the proceedings does not constitute such ‘compelling indications’. Moreover, the General Court committed an error of law in failing to analyse the dynamic of the individual segments of the upstream market and in accepting the effective lack of a statement of reasons on the part of the Commission for the finding that the upstream market was neither compartmentalised nor segmented.

Under the second ground, the appellant claims that the General Court distorted the appellant’s position and accordingly failed to examine the appellant’s plea relating to the definition of the downstream market (the market for paraffin waxes) and in addition accepted the effective lack of a statement of reasons on the part of the Commission for the finding that the downstream market was neither compartmentalised nor segmented.

Under the third ground, the appellant claims that the General Court distorted the appellant’s plea relating to the significance of imported slack wax for the purposes of competition on the market and therefore made an incorrect legal assessment of the appellant’s pleas.

Under the fourth ground, the appellant claims that the General Court committed manifest errors in the assessment of the economic effects of the concentration, by considering manifestly erroneously that Orlen did not have either any possibility or any interest in limiting the supply of slack wax in Poland and that it was possible to replace domestic slack wax by imported slack wax.

Under the fifth ground, the appellant claims that the General Court distorted the appellant’s arguments by finding that it had not criticised the Commission for having disregarded the fact that Orlen was not a potential competitor of Lotos.

Under the sixth ground, the appellant claims that the General Court erred in law and infringed its previous case-law by examining the concentration from the perspective of the Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings ¹ (‘the vertical guidelines’), whereas those guidelines are not applicable to concentrations whose vertical effects are closely linked to their horizontal dimension – such that the concentration on the slack wax market consisting in the merger of Lotos with Orlen should be assessed in the light of the Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings. ²

Under the seventh ground, the appellant claims that, even if it were found that the vertical guidelines are applicable to the examination of the concentration at issue, the General Court committed a number of manifest errors of assessment in the application of those guidelines.

Under the eighth ground, the appellant claims that the General Court erred in law by rejecting the appellant’s application to take expert evidence and by finding that the appellant’s application went beyond the subject matter of the measures of inquiry.

Under the ninth ground, the appellant claims that the General Court erred in law by finding that the circumstances following the contested decision bore no relevance for the purposes of the examination of the concentration, despite the fact that those circumstances demonstrate that the Commission’s reasoning in the decision was erroneous.

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¹ Commission Decision of 14 July 2020 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9014 – PKN Orlen/Grupa Lotos) (notified under document C(2020) 4651) (OJ 2021 C 196, p. 8).

¹ OJ 2008 C 265, p. 6.

¹ OJ 2004 C 31, p. 5.