21.7.2012

Official Journal of the European Union

C 217/27

(Case T-240/12)

2012/C 217/57

Language of the case: Italian

Parties

Applicant: Eni SpA (Rome, Italy) (represented by: G. Roberti and I. Perego, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—Declare the action admissible;

—Annul the contested measure;

—Order the Commission to pay the costs.

Pleas in law and main arguments

The present action is brought against the letter (D/2012/042026) of 23 April 2012 concerning Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber — Re-adoption, by which the European Commission communicated to ENI its decision to recommence the BR-ESBR procedure following the judgment of the General Court of 13 July 2011 in Case T-39/07 Eni v Commission, which annulled in part Decision C(2006) 5700 of 29 November 2006 adopted in Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber and reduced the fine imposed.

In support of the action, ENI relies on a single plea in law, alleging lack of competence, since the Commission cannot recommence the investigation procedure in Case BR-ESBR with a view to adopting a fresh decision imposing fines.

ENI submits that in its judgment of 13 July 2011, in addition to annulling in part the 2006 BR-ESBR decision, on the basis that the Commission had failed to make a correct assessment of the aggravating circumstance of repeated infringement, the General Court exercised its unlimited jurisdiction — under Article 261 TFEU and Regulation No 1/2003 — re-determining the amount of the fine and substituting its own assessment for that of the Commission. From that perspective, the decision to recommence the BR-ESBR procedure, as well as infringing the principle governing the attribution of powers and ensuring institutional balance referred to in Article 13 TFEU, is contrary to the fundamental right to fair legal process laid down in Article 6 ECHR and Article 47 of the Charter of Fundamental Rights and to the ne bis in idem principle embodied in Article 7 ECHR.

Moreover, ENI claims that, contrary to what is stated in the contested measure, the General Court did not merely establish a procedural defect in the Commission’s application of the concept of repeated infringement in the 2006 BR-ESBR decision; the Commission cannot, therefore, rely on the PVC II case-law to justify its own action, which, also from that perspective, is contrary to Article 7 ECHR.

Lastly, having regard to the relevant case-law, ENI submits that in the circumstances of the present case any possibility of readopting a decision which once again applies the concept of repeated infringement and imposes a fine is, in any event, wholly precluded.

(1) Joined Cases C-238/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P Limburgse Vinyl Maatschappij NV (LVM) and Others v Commission (PVV II) [2002] ECR I-8375.