Orders nº T-410/18 of Tribunal General de la Unión Europea, March 15, 2019

• Resolution Date: March 15, 2019
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-410/18

(Action for annulment - Competition - Agreements, decisions and concerted practices - Market in metal packaging - Decision to open an investigation - Act not open to challenge - Inadmissibility)

In Case T-410/18,

Silgan Closures GmbH, established in Munich (Germany),

Silgan Holdings, Inc., established in Stamford, Connecticut (United States),

represented by H. Wollmann, D. Seeliger, R. Grafunder and V. Weiss, lawyers,

applicants,

v

European Commission, represented par T. Christoforou, B. Ernst, G. Meessen, C. Vollrath and L. Wildpanner, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2018) 2466 final of 19 April 2018, by which the Commission initiated a proceeding under Article 101 TFEU in Case AT.40522 - Pandora,

THE GENERAL COURT (Fifth Chamber),

composed of D. Gratsias (Rapporteur), President, I. Labucka and A. Dittrich, Judges,

Registrar: E. Coulon,

makes the following

Order

Background to the dispute

1 The applicants, Silgan Closures GmbH and Silgan Holdings, Inc., are companies active, inter alia, in the metal packaging sector (metal containers and closures). In 2015, the Bundeskartellamt (Federal Cartel Office, Germany) opened an investigation in respect of several companies in the sector, including companies in the group to which the applicants belong. In connection with that investigation, the companies referred to, belonging to the same group as the applicants, applied for leniency and cooperated with the Federal Cartel Office by providing information.

2 A meeting intended to prepare a settlement was held between the Federal Cartel Office and the representatives of those companies on 8 September 2016.

3 By decision of 19 April 2018, the European Commission decided, pursuant to Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), to initiate a proceeding under Article 101 TFEU against several companies active in the metal packaging sector, including the applicants (Case AT.40522 - Pandora) (‘the contested decision’).

Procedure and forms of order sought

4 By application lodged at the Court Registry on 4 July 2018, the applicants brought the present action.

5 By separate document lodged at the Court Registry on 14 September 2018, the Commission submitted a plea that the action is inadmissible.

6 By documents lodged at the Court Registry on 18 and 26 September 2018, respectively, the Federal Republic of Germany and the Council of the European Union applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

7 The applicants claim that the Court should:

- reject the plea of inadmissibility;

- annul the contested decision;

- order the Commission to pay the costs.

8 The Commission contends that the Court should:

- dismiss the action as inadmissible;

- order the applicants to pay the costs.

Law

9 In the plea of inadmissibility, the Commission contends that the contested decision does not affect the interests of the applicants by bringing about a distinct change in their legal position, so that the action must be dismissed as inadmissible.

10 For their part, the applicants submit that the specific circumstances of the present case are such as to make the contested decision a challengeable act. In that connection, they claim that Articles 104 and 105 TFEU confer upon the Commission the power to initiate a proceeding under Article 101 TFEU only in compliance with the principles of subsidiarity and proportionality. In addition, the adoption of the contested decision resulted, in their submission, in the Federal Cartel Office being relieved of its competence and, therefore, in the opportunity to benefit from the latter’s leniency programme no longer being available to the applicants. Furthermore, they claim that that...