30.5.2022

EN

Official Journal of the European Union

C 213/42

(Case T-181/22)

(2022/C 213/59)

Language of the case: Portuguese

Parties

Applicant: Pharol, SGPS, SA (Lisbon, Portugal) (represented by: N. Mimosa Ruiz and L. Bettencourt Nunes, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—recognise the applicant’s legitimate interest in bringing the present action for annulment;

—declare that the present action for annulment has been brought in due form and is admissible;

—annul Decision C(2022) 324 final of 25 January 2022, amending Decision C(2013) 306 final of 23 January 2013, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (AT.39839 — Telefónica and Portugal Telecom) pursuant to Article 264 TFEU;

—in the alternative, and also pursuant to Article 264 TFEU, for the reasons given, reduce the fine imposed on the applicant under Article 1 of the contested decision;

—order the Commission to pay the costs of the proceedings and the expenses incurred by the applicant.

Pleas in law and main arguments

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

First plea in law, alleging a failure to have regard to the findings of the judgment of the General Court. The applicant submits that Decision C(2022) 324 final of 25 January 2022, amending Decision C(2013) 306 final of 23 January 2013, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (AT.39839 — Telefónica and Portugal Telecom) represents a new interpretation of the non-competition clause, which disregards the findings and the force of <span class="oj-italic">res judicata</span> of the judgment of the General Court, for which reason the contested decisions should be annulled.

Second plea in law, alleging infringement of essential procedural requirements and of the rights of defence of Pharol due to a failure to adopt a statement of objections. The applicant submits that, since it has adopted a new interpretation of the non-competition clause, which affects the findings relating to the scale of the infringement, the Commission should have adopted a new statement of objections, and this amounts to an infringement of essential procedural requirements and of the rights of defence of the applicant, thereby justifying the annulment of the contested decision.

Third plea in law, alleging an error in determining the sales values connected with the infringement. The applicant submits, inter alia, that the essential element for analysing the existence of potential competition, for the purposes of identifying precisely the sales connected, directly or indirectly, with the infringement, must be the actual possibility of entering each market at issue, that is to say the absence of insurmountable barriers to entry and, where there are such barriers, the existence of real and concrete possibilities for the undertaking to enter each of the markets; it is not sufficient for the Commission to make a finding — which is moreover erroneous — in the contested decision that there are no insurmountable barriers.