Appeal brought on 10 January 2024 by European Commission against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 25 October 2023 in Case T-136/19, Bulgarian Energy Holding EAD and Others v Commission

(Case C-14/24 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: G. Meessen, J. Szczodrowski, B. Cullen and C. Georgieva, acting as Agents)

Other parties to the proceedings: Bulgarian Energy Holding EAD (BEH), Bulgartransgaz EAD, Bulgargaz EAD, Republic of Bulgaria, Overgas Inc.

Form of order sought

The appellant claims that the Court should:

set aside the judgment under appeal;

refer the proceedings back to the General Court for reconsideration; and

order the applicants at first instance (Bulgarian Energy Holding EAD, Bulgartransgaz EAD, Bulgargaz EAD) to pay the costs of the appeal.

Pleas in law and main arguments

The appellant relies on ten grounds of appeal.

The General Court erred in law when it relied on case law regarding potential competition in the specific context of assessing (under Article 101 TFEU) pay-for-delay-agreements in the pharma sector in order to formulate additional evidentiary requirements that competition authorities have to comply with in order to demonstrate that preventing access to an essential facility is, in a given case, capable to generate not purely hypothetical anticompetitive effects. (First ground)

The General Court distorted evidences and facts and committed errors of legal appreciation. (Second, Third, Fourth, Seventh and Eighth grounds)

The General Court erred in law when it upheld the applicants’ complaint that the Commission incorrectly concluded that the offer to Overgas of an initial three-month duration of the 2013 pipeline access agreement was insufficient. (Fifth ground)

The General Court erred in law when it held in paragraph 689 that the Commission had not established to the requisite legal standard that the conduct alleged against Bulgargaz concerning the access of the pipeline constituted a refusal of access capable of falling within Article 102 TFEU. (Sixth ground)

The General Court erred in law when it relied on Frucona ¹ , to hold that in view of the Commission’s findings on BEH’s anticompetitive strategy and the existence of a single and continuous infringement it could not uphold the finding of an abuse as the regards the refusal of access to the storage facility UGS Chiren after June 2012. (Ninth ground)

The General Court erred in law by failing to compare the information already accessible to the applicants in the course of the administrative proceeding with the elements allegedly “undisclosed” to them. The General Court also distorted the evidence insofar as it finds the previously “undisclosed” information had significance which ought not to be disregarded, and it violates its own Rules of Procedure by not respecting the principle of adversarial nature of proceedings and not offering the Commission an opportunity to make observations on the applicants’ submission. (Tenth ground)

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¹ Judgment of 24 January 2013, Frucona Košice v Commission (C-73/11 P, EU:C:2013:32), paragraph 89.