Action brought on 8 August 2011 - Western Digital and Western Digital Ireland v Commission

(Case T-452/11)

Language of the case: English

Parties

Applicants: Western Digital Corp. (Dover, Delaware, United States) and Western Digital Ireland, Ltd (Grand Cayman, Cayman Islands) (represented by: F. González Díaz, lawyer, and P. Stuart, Barrister)

Defendant: European Commission

Form of order sought

Order the defendant to produce the questionnaires sent by it to third parties during the first phase and second phase of its investigation into the proposed acquisition by Western Digital Corporation of Viviti Technologies Ltd. and into the proposed acquisition by Seagate of the hard disk drive business of Samsung Electronics Co. Ltd.;

Order the defendant to grant access to its pre-notification and post-notification file in the Seagate transaction, including, in particular, access to the non-confidential versions of any correspondence and records of contacts between Seagate, Samsung, and the Commission until the notification date, and any internal communications within the Commission -- in both the Seagate/Samsung and Western Digital Ireland/Viviti Technologies cases -- concerning the prioritization of the two transactions;

Annul the priority decision included in the Decision (2011/C 165/04) of the European Commission of May 30, 2011, in Case COMP/M.6203 - Western Digital Ireland/Viviti Technologies, to open a second phase investigation with regard to the proposed concentration, in accordance with Article 6(1)(c) of Council Regulation No 139/2004¹ (OJ 2011 C 165, p. 3); and

Order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

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

First plea in law, alleging the defendant lacks the powers to adopt a priority rule based on the date of notification of a concentration.

Second plea in law, alleging that the defendant committed an error of law and violated the general principles of fairness and good administration, as:

The priority rule chosen by the defendant has no basis in EU law, does not follow from settled case-law, and is not inherent in the merger control system;

The priority rule chosen by the defendant leads to unsound policy outcomes; and

The priority rule chosen by the commission violates general principles of law.

Third plea in law, alleging that the defendant breached applicants' legitimate expectations that the proposed acquisition by Western Digital Corporation of Viviti Technologies Ltd. would be assessed against the market structure that prevailed when it was signed, announced and pre-notified to the Commission.

Fourth plea in law, alleging that the defendant breached the principles of good administration, fairness, proportionality and non-discrimination, by imposing additional burdens on the applicants, and by not disclosing the fact that there was a parallel transaction affecting the same relevant markets.

____________

¹ - Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).