Action brought on 23 September 2020 — Italia Wanbao-ACC v Commission

(Case T-583/20)

(2020/C 378/52)

Language of the case: Italian

Parties

Applicant: Italia Wanbao-ACC Srl (Borgo Valbelluna, Italy) (represented by: P. Ferrari and F. Filì, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	Primarily:

—	annul European Commission Decision of 15 May 2020, Case M.8947 — Nidec/Whirlpool (Embraco Business), C(2020) 3118 final, published on 14 July 2020 (Decision 2), in its entirety;

—	In the alternative:

—

annul Decision 2 to the extent to which it waives the prohibition on reacquisition, for the purposes of paragraph 5 of the Commitments, in relation to the assets, patents, intellectual-property rights and knowhow, technology rights, development projects, contracts and relationships with clients and suppliers, client lists, other data and information and personnel connected to the VSD version of the Delta Series.

—	In any event:

—	order the Commission to pay the costs of the present proceedings;

—	adopt any other measure which it considers appropriate.

Pleas in law and main arguments

The present action has been brought against the decision of 15 May 2020 by which the Commission waived the ‘non-reacquisition’ clause relating to the acquisition by Nidec Corporation of control of the refrigeration compressor sector belonging to Whirlpool Corporation (Case M.8947 — Nidec/Whirlpool (EMBRACO BUSINESS)); that clause was provided for in the decision of 12 April 2019 declaring the transaction compatible with the internal market while making that declaration subject to certain conditions.

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

First and second pleas in law, alleging incorrect application and misinterpretation of the legal rules and distortion of the clear sense of the evidence

—

The applicant argues in this regard that an amendment to structural commitments such as that here at issue may be authorised by the Commission solely in exceptional circumstances, that is to say, when changes occur in market conditions that are (i) significant, (ii) durable and (iii) unforeseeable. In addition, (iv) the competitive reason that led to the adoption of the Commitments must have disappeared. The conditions in points (i) to (iv) are cumulative. However, none of those conditions is satisfied in the present case.

—

As for the condition of significant scope (point (i)) and that of the disappearance of competitive reasons connected to the Commitments (point (iv)), the assessment of the evidence carried out by the Commission appears, in the view of the applicant, to be entirely distorted, and the reading and analysis of that evidence appear to be manifestly unreasonable.

Third and fourth pleas in law, alleging insufficient investigation and an insufficient statement of reasons and inconsistency with previous decisions

—

The applicant submits in this regard that the analysis of the market shares in the decision is focused solely on data relating to volumes, entirely disregarding data relating to value. Such an approach not only leads to a partial analysis but also appears to be at variance with the Commission’s decision of 12 April 2019, Case M.8947, C(2019) 2734 final.

—

The applicant further submits, also in relation to the data concerning market shares, that the decision appears to be based exclusively on the estimates provided by Nidec, that is, one single operator, which is, moreover, a directly interested party. The Commission ought, at the very least, to have been required to collect information also from other operators (by way of requests for information, that is, market tests).