Appeal brought on 12 May 2016 by Deutsche Bahn AG, Schenker AG, Schenker China Ltd, Schenker International (H.K.) Ltd against the judgment of the General Court (Ninth Chamber) delivered on 29 February 2016 in Case T-267/12: Deutsche Bahn AG and Others v European Commission

(Case C-264/16 P)

Language of the case: English

Parties

Appellants: Deutsche Bahn AG, Schenker AG, Schenker China Ltd, Schenker International (H.K.) Ltd (represented by: F. Montag, Rechtsanwalt, F. Hoseinian, avocat, M. Eisenbarth, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellants claim that the Court should:

set aside the judgment of the General Court of 29 February 2016 in case T-267/12 Deutsche Bahn AG and Others v European Commission;

annul Articles 1(2)(g), 1(3)(a), 1(3)(b) and 1(4)(h) of the Commission decision of 28 March 2012 in Case COMP/39462 – Freight Forwarding (the Decision) or alternatively refer the case back to the General Court;

annul or, in the alternative, reduce the fines set out in Articles 2(2)(g), 2(3)(a), 2(3)(b) and 2(4)(h) of the Decision or alternatively refer the case back to the General Court; and

order the Commission to pay the cost of the proceedings.

Pleas in law and main arguments

The Appellants rely on the five following grounds of appeal: 

The General Court errs in law in concluding that the Commission was entitled to rely on Deutsche Post's immunity application, that the principle of prohibition of double representation had not been breached and that the Commission did not have to investigate the potential breach of the said principle.

The General Court errs in law in interpreting Article 1 of Regulation 141/62¹ as not applicable to the “Advance Manifest System” conduct.

The General Court errs in law in concluding that the Commission did not breach Article 41 of the Charter of Fundamental Rights of the European Union, the principle of sound administration and the duty to state reasons under Article 296 of the Treaty on the Functioning of the European Union (TFEU) when it decided not to hold The Brink’s Company jointly and severally liable with Schenker China Ltd. (as a successor of BAX Global (China) Co. Ltd. ) for the “Chinese Currency Adjustment Factor” conduct.

The General Court errs in law by distorting the content of the Decision, exceeding the powers given to it under Article 264 TFEU and failing to carry out a balancing exercise in applying the principle of proportionality when concluding that the Commission did not breach Article 23 of Regulation 1/2003² and the principles of proportionality and that the punishment must fit the offence when calculating the fines.

The General Court errs in law by upholding the Commission’s reduction rates under the 2006 Leniency Notice³ . The General Court distorts the content of the Decision and breaches the Appellants’ rights to a fair hearing.

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¹ EEC: Regulation No 141 of the Council exempting transport from the application of Council Regulation No 17

OJ 124, p. 2751

² 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 L 1, p. 1

³ Commission Notice on Immunity from fines and reduction of fines in cartel cases

OJ C 298, p. 17