12.4.2008

EN

Official Journal of the European Union

C 92/36

(Case T-45/08)

(2008/C 92/73)

Language of the case: Spanish

Parties

Applicant: Transportes Evaristo Molina S.A. (Santa María del Águila, Spain) (represented by: A. Hernández Pardo, L. Ruiz Ezquerra and M.C. Flores Hernández, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—annul Commission Decision of 12 April 2006 relating to a proceeding under Article 81 of the EC Treaty COMP/B-1/38.348 Repsol CPP, and

—order the Commission to pay the costs.

Pleas in law and main arguments

This application was brought against the decision of the Commission of 12 April 2006 because it accepted the commitments proposed by REPSOL CPP in accordance with the provisions of Article 9(1) of Regulation (EC) 1/2003 (1).

That decision concerns the procedure initiated following the request by REPSOL CPP for negative clearance or, failing that, an individual exemption with respect to the standard agreements and/or contracts by means of which it carried out its fuel distribution activities for motor vehicles through service stations in Spain.

In the offer of commitments accepted by the Commission, REPSOL CPP undertook, inter alia, to increase the annual number of service stations which may change supplier, for which it undertook to offer the bare owners/operators of the service stations the possibility of recovery of the right in rem to the usufruct or over the buildings subject, however, to compliance with a series of conditions by the operator.

The applicant, the owner-operator of a service station which had concluded a supply contract with REPSOL CPP claims that since 19 November 2007, the date on which it received notification from the monitoring trustee of its inclusion in Annex I of REPSOL CPP's commitments, the contested decision directly and individually concerns it.

In support of its claims, the applicant complains, first of all, that the Commission infringed Article 9 of Regulation 1/2003. In particular, the applicant claims that the Commission, although aware of the correct interpretation of the competition rules relating to time limits, accepted the commitments proposed by REPSOL CPP, going beyond and infringing the aim of Article 9 of Regulation 1/2003. In addition, the applicant claims in that context that the contested decision infringes Article 9 of Regulation 1/2003 and the principle of proportionality since the commitments accepted by the Commission were not effective to give an appropriate response to the concerns expressed by the applicant.

Second, the applicant relies on infringement of the principle according to which persons subject to Community law may not benefit from their own unlawful acts or become enriched without just cause.

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).