4.11.2019

Official Journal of the European Union

C 372/29

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(Case C-689/19 P)

(2019/C 372/31)

Language of the case: English

Parties

Appellant: VodafoneZiggo Group BV (represented by: W. Knibbeler, A.A.J. Pliego Selie, B.A. Verheijen, advocaten)

Other party to the proceedings: European Commission

Form of order sought

The applicant claims that the Court should:

—set aside the order of the General Court of 9 July 2019 in Case T-660/18 (the Contested Order);

—refer the case back to the General Court for consideration;

—reserve the costs of the present proceedings.

Pleas in law and main arguments

First ground of appeal: errors of law in the General Court’s conclusion that decision C(2018) 5848 final of the European Commission (the Contested Decision) does not produce binding legal effects.

First limb of the first ground: the requirement for national regulatory authorities to ‘take utmost account of’ comments of the European Commission made pursuant to Article 7(3) of Directive 2002/21/EC (1) imposes a binding legal obligation upon those authorities.

Second limb of the first ground: comments made pursuant to Article 7(3) of Directive 2002/21/EC amount to an authorisation, because the European Commission is thereby choosing to conclude its investigation without using its right of veto.

Third limb of the first ground: the Contested Decision cannot be qualified as a preparatory act because the procedure the European Commission follows is separate and distinct from the national procedure.

Fourth limb of the first ground: the General Court, by deeming the Commission’s use of the word ‘decision’ to be ‘inappropriate’, exceeds its competence of judicial review.

Fifth limb of the first ground: the Contested Order suffers from a lack of reasoning in its statement that the subject matter of the Contested Decision would be ‘irrelevant’.

Second ground of appeal: errors of procedure by failing to address arguments capable of materially affecting the outcome of the case.

First limb of the second ground: regarding the argument that an opportunity for BEREC to comment was foreclosed.

Second limb of the second ground: regarding the argument that the foreclosure of an opportunity to be heard cannot be remedied by other, unrelated opportunities to be heard.

Third ground of appeal: errors of law in the General Court’s conclusion that the appellant’s fundamental rights would not be infringed. The appellant enjoys fundamental rights under Article 47 of the Charter of Fundamental Rights of the European Union, in light of which its arguments and admissibility must be interpreted. Moreover, the procedure for a preliminary ruling cannot prevent the infringement.

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(1) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ 2002, L 108, p. 33).