Case before the General Court • Case T-289/11 (Deutsche Bahn AG a.o. v. European Commission) • Application for annulment of the Commission decision dated 14 March 2011 (K(2011)1774 in case COMP/39.678 and COMP/39.731) = Council intervention before the General Court in support of the Commission - Main contents

Document date	20-07-2011
Publication date	22-01-2013
Reference	13151/11
From	Council Legal Service
To	COREPER 1
External link	original PDF
Original document in PDF

COUNCIL OF Brussels, 20 July 2011

THE EUROPEAN UNION

13151/11

JUR 386 RC 11

INFORMATION NOTE from : Council Legal Service to : COREPER 1 Subject : Case before the General Court

• Case T-289/11 (Deutsche Bahn AG a.o. v. European Commission) • Application for annulment of the Commission decision dated 14 March 2011

(K(2011)1774 in case COMP/39.678 and COMP/39.731) = Council intervention before the General Court in support of the Commission

• 1. 

  On 7 June 2011, Deutsche Bahn AG and others brought an action, pursuant to Article 263(4) TFEU, against the Commission on account of its decision of 14 March 2011 1 in case

  COMP/39.678 and COMP/39.731 ("the Decision"). With this Decision, based on Article 20

  of Council Regulation N o 1/2003 i of 16 December 2002 on the implementation of the rules on

  competition laid down in Articles 81 and 82 of the Treaty 2 , the Commission ordered

  inspections to be carried out in the context of alleged breaches, by the applicants, of Article 102 TFEU and Article 54 EEA in the field of rail transport. On the basis of the Decision, the Commission services searched the premises of the applicants without a prior authorisation from a judicial authority. The applicants request that the Decision be declared void.

1 Commission Decision K(2011)1774.

2 OJ L 1 of 4 January 2003, pages 1-25.

• 2. 

  The applicants raise four pleas in law. With the first and second plea, which concern the

  conditions under which the Commission may order inspections, notably the search of

  premises, the applicants claim that the order based on Article 20(4) of Regulation N o 1/2003 i

  infringes the fundamental right to the inviolability of the home (Article 7 of the Charter of Fundamental Rights) and the fundamental right to an effective remedy (Article 47(1) of the Charter of Fundamental Rights).

• 3. 

  According to the applicants, the respect of these fundamental rights called for the prior

  authorisation of the searches from a judicial authority. In support of their claim, the applicants

  cite in particular the ruling of the European Court of Human Rights of 16 April 2002 in the

  case Société Colas Est and others v. France 1 .

• 4. 

  Article 20 of Regulation No 1/2003 i of the Council sets out the Commission's power of

  inspection in the context of the implementation of the competition rules laid down in Articles 101 and 102 TFEU. These powers include entering premises of undertakings concerned. According to Article 20(4) of that regulation, the inspections are ordered by decision of the Commission. The Commission shall take such decision after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.

• 5. 

  Paragraphs 6 and 7 of Article 20 of the regulation foresee the need to apply for an

  authorisation from a judicial authority according to national rules where the Commission finds that an undertaking opposes the inspection (or as a precautionary measure).

• 6. 

  Since the applicants thus implicitly call into question the legality of Council Regulation N o

  1/2003, the Council has to intervene in this case, in order to defend the legality of its act. In accordance with the Council's practice, the Council agents will limit their arguments to the defence of the legality of this act and will not intervene on other points.

1 Application no. 37971/97.

• 7. 

  The Director-General of the Council Legal Service has appointed Ms. Marion SIMM and Mr.

  Fernando FLORINDO GIJÓN, legal advisers in the Council Legal Service, as the Council's agents in this case. The agents have presented, on behalf of the Council, an application to intervene pursuant to Articles 53 and 40 of the Statute of the Court of Justice and to Article 115(1) of the Rules of Procedure of the General Court.

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