14.2.2022

EN

Official Journal of the European Union

C 73/51

(Case T-771/21)

(2022/C 73/65)

Language of the case: German

Parties

Applicant: Bategu Gummitechnologie GmbH (Vienna, Austria) (represented by: G. Maderbacher, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—declare the present action admissible;

—order the European Union, represented by the Commission, to pay EUR 70 695 720,35;

—order the European Union to pay the costs.

Pleas in law and main arguments

The applicant submits an application under Article 268 TFEU seeking compensation in respect of the harm which it allegedly suffered as a result of serious breaches by the Commission in the performance of its duties. The Commission failed, contrary to its obligations, to find and bring to an end infringements of Articles 101 TFEU and 102 TFEU by manufacturers of rail vehicles. The Commission has availed of legitimate expectations and prompted the applicant to make investments.

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

1.First plea in law, alleging serious misuse of powers and manifest errors of assessment by the Commission

The Commission failed, in the context of a formal complaint brought by the applicant pursuant to Article 7 of Regulation No 1/2003, (1) to examine carefully all considerations of fact and law.

2.Second plea in law, alleging serious breach by the Commission of the principles of protection of legitimate expectations and legal certainty

The Commission gave precise, unconditional and consistent assurances that the materials used in rail vehicles had to meet requirements which the Commission had itself laid down. In view of those assurances, the applicant made significant investments, inter alia, in the development of technology meeting those requirements, which would be rendered worthless by the Commission’s inaction.

3.Third plea in law, alleging serious infringement by the Commission of the applicant’s fundamental right to property pursuant to Article 17 of the Charter of Fundamental Rights of the European Union (2)

According to the case-law of the European Court of Human Rights on Article 1 of Protocol No 1 to the European Convention on Human Rights which, pursuant to Article 52 of the Charter must be taken into consideration in the interpretation of the Charter, the Commission is under an obligation to take positive measures to protect the applicant’s intellectual property. The Commission failed to take such measures.

4.Fourth plea in law, alleging infringement of the applicant’s right to good administration pursuant to Article 41 of the Charter

After the applicant’s formal antitrust complaint had been raised, it took the Commission approximately four years to inform the applicant that it did not intend, on the basis of that complaint, to bring the alleged infringement to an end and the Commission has as yet not taken a final decision on the complaint. There is nothing in the parts of the file which the Commission has disclosed that would justify the lengthy duration of the proceedings. The applicant thus alleges infringement of Article 41 of the Charter on the part of the Commission.

(1) 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).

(2) Charter of Fundamental Rights of the European Union (OJ 2012 C 326, p. 391).