9.6.2012

EN

Official Journal of the European Union

C 165/32

(Case T-164/12)

2012/C 165/54

Language of the case: English

Parties

Applicants: Alstom (Levallois Perret, France); Alstom Holdings (Levallois Perret); Alstom Grid SAS (Paris, France); and Alstom Grid AG (Oberentfelden, Switzerland) (represented by: J. Derenne, lawyer, N. Heaton, P. Chaplin and M. Farley, Solicitors)

Defendant: European Commission

Form of order sought

—Annul the Commission’s decision of 26 January 2012 contained in letters no D/2012/006840 and no D/2012/006863 to transmit certain documents to the High Court of England and Wales that were submitted by the applicants (or their predecessors) to the Commission during the course of the investigation in Case COMP/F/38.899 — Gas Insulated Switchgear (OJ 2008 C 5, p. 7);

—Order the Commission to pay the costs of the applicants.

Pleas in law and main arguments

In support of the action, the applicants rely on three pleas in law.

1.First plea in law, alleging that the transmission of the documents in question to the High Court of England and Wales would:

—constitute an error of fact and result in the disclosure of leniency material contained in such documents, which, in violation of Article 4(3) TEU, would undermine the interests of the European Union and interfere with its functioning and independence, in particular by jeopardising the overall effectiveness of the Commission’s leniency programme that is so paramount to the Commission’s ability to accomplish its task of enforcing Article 101 TFEU;

—violate the general principle of right to be heard and in particular paragraph 26 of the Cooperation Notice (1) as the Commission failed to seek the consent of the concerned companies to disclose the leniency material contained in such documents;

—violate the Commission’s duty to give reasons under Article 296 TFEU as it implicitly rejected the applicants’ claims that certain parts of the documents in question constitute leniency material without stating any reasons.

2.Second plea in law, alleging that the decision should be annulled on the grounds that:

—transmitting the confidential information contained in the documents in question to the High Court of England and Wales for the purposes of use in the English proceedings cannot be justified on the basis of Article 4(3) TEU, as disclosure of such information will discourage undertakings in the future from co-operating with the Commission in its investigations and thereby interfere with the Commission’s ability to enforce competition law;

—transmitting the confidential information contained in the documents in question to the High Court of England and Wales when that Court has expressly informed the Commission that it intends to disclose such information to third parties that are members of a confidentiality ring breaches paragraph 25 of the Cooperation Notice;

—the protection afforded by the confidentiality ring in this case falls below the standards required by Article 339 TFEU and paragraph 25 of the Cooperation Notice. Disclosure of the confidential information contained in the documents in question to the High Court of England and Wales would, therefore, breach the Commission’s obligations under these principles.

3.Third plea in law, alleging that the decision to transmit such documents to the High Court of England and Wales violates the principle of proportionality as it was neither appropriate nor necessary for the Commission to transmit the confidential version of such documents together with its annexes to the English High Court, even though the annexes are not relevant to the central issues which the English High Court will have to address and the General Court redacted from its judgment in Case T-121/07 all references to the content of these documents.

(1) Commission Notice on the cooperation between the Commission and the courts of the EU Member States in the application of Articles 81 and 82 EC (OJ 2004 C 101, p. 54)