19.11.2011

EN

Official Journal of the European Union

C 340/27

(Case T-486/11)

2011/C 340/56

Language of the case: English

Parties

Applicant: Telekomunikacja Polska SA (Warsaw, Republic of Poland) (represented by: M. Modzelewska de Raad, P. Paśnik, S. Hautbourg, lawyers, C. Vajda, QC, and A. Howard, barrister)

Defendant: European Commission

Form of order sought

—annul the Commission Decision C(2011) 4378 final, dated 22 June 2011, in its entirety; alternatively

—annul Article 2 of the contested decision in its entirety; or in the alternative

—reduce the fine there stated, as appropriate; and

—order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

First plea in law, alleging

—an error of law and reasoning by failing to demonstrate any legitimate interest in pursuing an investigation and in adopting an infringement decision regarding historic conduct;

Second plea in law, alleging

—that Article 2 of the contested decision contravenes Article 6 of the European Convention of Human Rights (‘ECHR’) and/or Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), by determining a criminal charge by an administrative body, namely the Commission, instead of an independent court complying with the guarantees of Article 6;

Third plea in law, alleging

—that Article 2 is null and void as the Commission failed to respect the applicant’s rights of defence during the administrative procedure by failing to set out its position on aggravating and attenuating circumstances for the calculation of the fine;

Fourth plea in law, seeking

reduction in the level of the fine on the grounds that the Commission erred in its assessment of the gravity of the infringement and breached the principle of proportionality when determining the basic amount of the fine:

(a)failure to take account of the fact that the infringement involved different practices with different durations and intensities;

(b)errors of assessment in the finding that the infringement had an actual negative impact on competition and consumers in the relevant market.

Fifth plea in law, seeking

a reduction in the level of the fine on the grounds that the Commission improperly and unfairly failed to take account of mitigating circumstances:

(a)failure to give credit for the compensatory measures undertaken by the applicant in the way of substantial investments to improve the broadband infrastructure in Poland for the benefit of competitors and consumers;

(b)failure to recognise the voluntary termination of the infringement;

(c)failure to give credit for the commitments offer made by the applicant.