27.3.2010

EN

Official Journal of the European Union

C 80/44

(Case T-55/10)

2010/C 80/70

Language of the case: Italian

Parties

Applicant: SP SpA in liquidazione (Brescia, Italy) (represented by: G. Belotti, lawyer)

Defendant: European Commission

Form of order sought

—Annul the Commission’s decision of 8 December 2009 amending the earlier decision — C(2009) 7492 final — adopted by the Commission on 30 September 2009;

—Order the defendant to pay the costs.

Pleas in law and main arguments

By decision of 8 December 2009 (‘the contested decision’), the Commission amended its earlier decision — C(2009) 7492 final of 30 September 2009 — by which it had accused a number of companies, including the applicant, of participating in an alleged cartel. By the contested decision, the Commission acknowledged that the decision of 30 September 2009 ‘referred to an annex which set out tables illustrating the price movements for concrete reinforcing bars during the time when the cartel was in operation’ and that ‘that annex was not included in the decision adopted on 30 September 2009’, and decided to amend that decision in order to incorporate within it the tables annexed to the contested decision.

In support of its action, the applicant puts forward the following pleas in law:

1.Illegality of the subsequent rectification of a measure vitiated by a grave defect: the Commission is not empowered to remedy after the event a decision which, being clearly incomplete at the time of adoption, is manifestly invalid; that constitutes a particularly grave circumstance which, as such, cannot be remedied.

2.Incorrect legal basis cited: the Commission cited as the legal basis for the contested measure Article 65 CS and Regulation (EC) No 1/2003, which are manifestly inappropriate as legal bases for pursuing the aim which the Commission had set itself (that is to say, for supplementing/amending one of its earlier decisions, the text of which had been incomplete). Accordingly, the second decision, which is contested in these proceedings, must be annulled because of the clear lack of an appropriate legal basis.

The applicant also alleges breach of the principle of sound administration.

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).