Appeal brought on 22 February 2019 by Slovak Telekom, a.s. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 13 December 2018 in Case T-851/14: Slovak Telekom v Commission

(Case C-165/19 P)

(2019/C 148/30)

Language of the case: English

Parties

Appellant: Slovak Telekom, a.s. (represented by: D. Geradin, Rechtsanwalt, R. O'Donoghue QC)

Other parties to the proceedings: European Commission, Slovanet, a.s.

Form of order sought

The appellant claims that the Court should:

—	set aside of the judgment of the General Court, in whole or in part;

—	annul the Decision, in whole or in part;

—	in the alternative, annul or further reduce the fines imposed on ST; and

—	order the Commission to pay all costs related to the present proceedings and the proceedings before the General Court.

Pleas in law and main arguments

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First Plea — Errors of law and/or a manifest error or lack of reasoning on refusal to deal:

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First Sub-Plea: ST submits that the General Court's finding that the Bronner conditions for refusal to supply under Article 102 TFEU do not apply where there is an ex ante regulatory access obligation is incorrect. Moreover, the argument of the General Court that the Bronner condition of ‘indispensability’ did not need to be satisfied since an ex ante regulation had already acknowledged ‘the need for access to the applicant's local loop’ and that, accordingly, the Commission did not need to (re)examine ‘indispensability’ under Article 102 is an error of law.

—	Second Sub-Plea: ST submits that the General Court's finding that the CJEU judgment in TeliaSonera supports the proposition that the refusals to deal engaged in by ST do not require a demonstration that the Bronner conditions are satisfied is an error of law.

—	Third Sub-Plea: ST submits that General Court's finding that the General Court's Clearstream judgement should be distinguished from ST case because, unlike ST, it did not involve a former State monopoly or an ex ante regulatory access obligation is an error of law.

—	Fourth Sub-Plea: ST submits the General Court committed an error of law and/or a manifest error or lack of reasoning in its finding that a constructive refusal is not necessarily less serious than an actual refusal, and that a case-by-case assessment is required.

—	Fifth Sub Plea: ST submits the General Court erred in law and/or made a manifest error of appreciation in concluding that ST being a former State monopoly provided a legal basis for ignoring the application of the Bronner conditions in the case at hand.

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Second Plea — ST submits that the General Court's finding, whereby the Commission did not breach its rights of defence by failing to disclose its long-run average incremental costs (‘LRAIC’) methodology, principles, and data to ST, and allowing ST to comment, prior to the Decision, and in a time frame that allowed ST a meaningful opportunity to exercise its rights of defence, is an error of law.

—	Third Plea — ST submits that the General Court's reasons for rejecting its ‘optimisation’ adjustments involved errors of law in that they misapply the legal concept of an equally efficient operator (‘EEO’) in the particular context of the present case.