27.7.2013

Official Journal of the European Union

C 215/9

—

(Case C-283/13 P)

2013/C 215/12

Language of the case: English

Parties

Appellants: Henkel AG & Co. KGaA, Henkel France (represented by: F. Brunet, E. Paroche, avocats, E. Bitton, advocate)

Other parties to the proceedings: European Commission, Kingdom of Denmark

Form of order sought

The applicants claim that the Court should:

—Annul the Order in so far as it declared that there was no need to adjudicate on Henkel’s head of claim of the action seeking the annulment of the contested decision before the General Court (paragraph 1 of the operative part of the Order);

—Rue that Henkel’s action before the General Court is not devoid of purpose and is admissible, and remand the case to the General Court for reconsideration of the appropriate facts;

—Annul the Order in so far as it ordered Henkel to pay its own costs and to bear the Commission costs, including those incurred in the application for interim measures in case T-607/11R (paragraph 4 of the operative part of the Order), and order the Commission to pay the costs of the present proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

The present appeal contains four pleas, by which the Appellants dispute the General Court's conclusion that they did not have an interest in pursuing their appeal before the General Court against the contested decision. The General Court indeed wrongly ruled that the contested decision became devoid of purpose following the ADLC's decision in which the ADLC considered that the transmission of the documents was not necessary in order to guarantee the respect of the Appellants’ rights of defense and that the documents were not relevant for the analysis of the case before the ADLC.

On the contrary, the Appellants claim that they retained a legal interest in bringing proceedings before the General Court because they need to rely on the documents in the French proceedings in order to prove that (i) the facts sanctioned in Case COMP/39.579 are the same or are at the very least closely related to the facts prosecuted in the French proceedings, which has a bearing on the Applicants’ leniency status in France; and (ii) Henkel’s insistence to be authorized to use the documents in the French proceedings should not be viewed as a leniency applicant’s lack of cooperation justifying a fine reduction of 25 % instead of 30 %, as the ADLC judged, but should be viewed as the exercise of a legitimate right and interest, namely, the exercise of the rights of defense.

This appeal is divided into four pleas:

—First, the General Court distorted the facts because it erroneously held that there was no other procedural step following the ADLC's decision, in which the documents could be reviewed, if the contested decision was annulled and the documents were transferred to the ADLC;

—Second, the General Court distorted the facts by misinterpreting the real purpose of the request for the transmission of the documents, when it held that the purpose of the request was only to enable the ADLC to examine the documents, while its main purpose was to enable Henkel to exercise its rights of defense by discussing the documents in the French proceedings;

—Third, the Order is vitiated by a lack of reasoning because the General Court considered that Henkel had no interest in bringing proceedings without reviewing the arguments put forward by Henkel;

—Fourth, the General Court committed an error of law by failing to examine whether Henkel did not retain an interest in bringing proceedings before the General Court so as to avoid a repetition of an illegal act.

For each of these reasons, the Appellants respectfully request the Court to annul the Order.

—