26.2.2018

EN

Official Journal of the European Union

C 72/41

(Case T-834/17)

(2018/C 072/52)

Language of the case: English

Parties

Applicant: United Parcel Service, Inc. (Atlanta, Georgia, United States) (represented by: A. Ryan, solicitor, F. Hoseinian and W. Knibbeler, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—compensate UPS for the damages incurred, in the amount of EUR 1 742 billion and applicable interest;

—compensate UPS for the taxes that will be imposed on the damages obtained, on the basis of the tax rate applicable on the day of judgment; and

—order the Commission to pay the costs of the present proceedings.

Pleas in law and main arguments

The applicant seeks compensation under Article 340 TFEU for the loss suffered as a consequence of Commission Decision C(2013) 431, Case COMP/M.6570 UPS/TNT Express (‘the Decision’) which was annulled by the General Court on 7 March 2017 in Case T-194/13.

In support of its application, the applicant claims that the Decision is tainted with serious breaches of rules of law that are intended to confer rights on UPS. According to the applicant, each breach individually underpinned the Decision and prevented the applicant from acquiring TNT and from materialising the benefits associated with that proposed transaction.

The applicant claims that these breaches are a serious breach of the law regarding (1) the price concentration analysis; (2) the efficiencies analysis; (3) the assessment of FedEx’s competitiveness; and (4) the assessment of the closeness of competition made in the Decision.

According to the applicant, each of these breaches, individually or considered together, is responsible for the unlawful Decision and establishes the Union’s liability under Article 340 TFEU.

The applicant further claims that these breaches in turn caused the applicant’s loss because had they not taken place, UPS would have acquired TNT. Without any one of the erroneous price concentration analysis, the efficiencies analysis, the assessment of FedEx’s competitiveness and the closeness of competition assessment, so the applicant claims, no ordinarily prudent and diligent administration would have prohibited the proposed Transaction.

According to the applicant, it should therefore be put in the position it would have been in had the unlawful Decision not been adopted by way of compensation under Article 340 TFEU.