Official Journal of the European Union

C 428/12

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(Case C-487/16 P)

(2016/C 428/13)

Language of the case: Spanish

Parties

Appellant: Telefónica S.A. (represented by: J. Folguera Crespo and P. Vidal Martínez, lawyers)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court should:

—set aside the judgment, and annul the decision, for the reasons set out in the second ground of appeal, declaring that Telefónica’s conduct did not constitute a restriction by object;

—in the alternative, set aside the judgment for the reasons set out in the first ground of appeal, remitting the case to the General Court so that it may examine the rejected witness evidence and rule on the merits of Telefónica’s action for annulment before the General Court having regard to the evidence examined;

—in the further alternative, and for the reasons set out in the third ground of appeal:

—set aside point 1 of the operative part of the judgment;

—declare the lesser gravity of Telefónica’s conduct and the existence of the mitigating circumstances indicated in the third ground of appeal; and

—determine the appropriate percentage of reduction of the fine in view of that lesser gravity and the indicated mitigating circumstances, in accordance with the matters set out in the third ground of appeal;

—order the Commission to pay the costs incurred by Telefónica both at first instance and in the present proceedings before the Court of Justice;

—allow the length of this appeal, which is slightly greater than the length recommended in the Court’s Practice Directions, in view of the financial impact of the case on the applicant and the complexity of the arguments set out.

Pleas in law and main arguments

1.Infringement of Articles 47 and 48(2) of the Charter of Fundamental Rights of the European Union and of Article 68 of the Rules of Procedure of the General Court by rejecting the requested hearing of witnesses. — The General Court’s rejection of the requested witness evidence placed Telefónica in a situation in which it was unable to defend itself, since that evidence was essential and decisive for the proper adjudication of the case. The approach taken by the General Court warrants four fundamental objections: (i) the teleological contradiction objection; (ii) the disproportionate burden of proof objection; (iii) the objection relating to the prejudging of the outcome of the witness evidence; and (iv) the imbalanced weighting objection.

2.Infringement of Article 101 TFEU as a result of the erroneous application of the case-law relating to the restrictions by object and of the duty to state reasons and the presumption of innocence.

3.Error in the assessment of the lesser gravity of the infringement and in the existence of mitigating circumstances in Telefónica’s conduct. — Telefónica submits that the General Court failed to take into consideration in its assessment additional factors that showed the lesser gravity of Telefónica’s conduct and which would have given rise to a greater reduction of the fine than that applied by the Commission.

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Commission Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 TFEU (Case COMP/39.839 — Telefónica/Portugal Telecom)

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