(Case T-415/18)

Language of the case: German

Parties

Applicants: Silgan Closures GmbH (Munich, Germany) and Silgan Holdings Inc. (Stamford, Connecticut, United States) (represented by: D. Seeliger, Y. Gürer, R. Grafunder and V. Weiss, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul inspection decision C(2018) 2173 final of 6 April 2018, notified on 24 April 2018;

—annul all measures taken on the basis of the inspection, which was conducted on the basis of that unlawful decision;

—in particular order the Commission to return all copies of documents made and taken away during that inspection, on pain of annulment of the future Commission decision by the General Court; and

—order the Commission to pay the costs.

Pleas in law and main arguments

The action is based on the following pleas in law.

1.Infringement of fundamental rights of defence and principles of procedural law

In the context of the first plea, the applicants claim in particular that the Bundeskartellamt (German Federal Competition Authority) disclosed information to the Commission which the applicants had made available to the Bundeskartellamt in the national proceedings ongoing since 2014 in the context of their cooperation and which should therefore not have been disclosed in the course of the exchange of information under Article 12 of Council Regulation (EC) No 1/2003. (1)

2.Failure to state adequate reasons in the inspection decision and an unreasonably wide and non-specific description of the subject matter of the inspection (‘fishing expedition’), as well as a lack of sufficient evidence

3.Infringement of the principle of proportionality

In this regard, the applicants claim that the ordering of the inspection on the basis of the investigations and state of proceedings before the Bundeskartellamt was neither necessary nor appropriate.

4.Misuse of powers

In the context of the fourth plea, the applicants argue that the ordering of the inspection is based on irrelevant considerations. The case involves improper cooperation of the Bundeskartellamt and the Commission in order to enable the Commission to impose penalties on companies which might not have been possible at a national level as a result of legislative lacunae.

5.Lack of competence of the Commission and infringement of the principle of subsidiarity

In this regard, the applicants submit that it is not apparent either that it would have been inappropriate for the Bundeskartellamt to bring to a proper end the proceedings pending before it or why the proceedings, on account of their scope or effects, would be better conducted at EU level at such a late point in time.

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).

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(1)