Action brought on 7 June 2011 - Deutsche Bahn and Others v Commission

(Case T-290/11)

Language of the case: German

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), DB Mobility Logistics AG (DB ML AG) (Berlin, Germany), DB Netz AG (Frankfurt am Main, Germany), Deutsche Umschlaggesellschaft Schiene-Strasse mbH (DUSS) (Bodenheim, Germany) DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J.S. Brückner and O. Mross, lawyers)

Defendant: European Commission

Forms of order sought

The applicants claim that the Court should:

annul the Commission's inspection decision of 30 March 2011 notified on 31 March 2011;

annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

in particular order the Commission to return all the copies of documents made during the inspections, on pain of the annulment of the future Commission decision by the General Court, and

order the Commission to pay the costs.

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011)2365 of 30 March 2011 (Cases COMP/39.678 and COMP/39.731), ordering, in accordance with Article 20(4) of Council Regulation (EC) No 1/2003¹, inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group and of the provision of rail-linked services.

In support of their action, the applicants make five pleas in law.

First plea: infringement of the fundamental right to inviolability of one's premises by reason of lack of prior judicial authorisation.

Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from the factual and the legal point of view.

Third plea: Unlawfulness of the inspection decision, as it is based on information obtained by the Commission in the course of implementing the inspection decision on the system of rebates for electric traction energy, in the context of a very broad inquiry ('fishing expedition'), and thus in breach of the applicants' defence rights.

Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific subject-matter of the inspection.

Fifth plea: infringement of the proportionality principle, as the Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.

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¹ - 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 2003 L 1, p. 1).