ORDER OF THE GENERAL COURT (Third Chamber)
7 March 2013(*)
(Action for annulment – Request from the French competition authority seeking to obtain the transmission of certain documents contained in the Commission’s file relating to competition proceedings concerning the European market for consumer detergents – Use in the context of national proceedings concerning the French detergents sector – Disappearance of the legal interest in bringing proceedings – No need to adjudicate – Inadmissibility)
In Case T‑607/11,
Henkel AG & Co. KGaA, established in Düsseldorf (Germany),
Henkel France, established in Boulogne‑Billancourt (France),
represented by R. Polley, T. Kuhn, F. Brunet and É. Paroche, lawyers,
applicants,
supported by
Kingdom of Denmark, represented by C. Vang, acting as Agent,
intervener,
v
European Commission, represented by N. Khan and P. J. Van Nuffel, acting as Agents,
defendant,
APPLICATION, first, for annulment of the decision allegedly contained in the Commission’s letter of 30 September 2011 (Case COMP/39.579 – Consumer detergents – and Case 09/0007 F) whereby the Commission refused to act on a request from the French competition authority to transmit to it, in the context of Case 09/0007 F concerning the French detergents sector, several documents produced in Case COMP/39.579 and, secondly, for an order that the Commission authorise the applicants to rely on the documents at issue before the French competition authority, and for any other measure that the Court deems appropriate,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 In December 2009, the European Commission initiated a proceeding against Unilever NV and Unilever PLC (hereinafter collectively referred to as ‘Unilever’), The Procter & Gamble Company and Procter & Gamble International Sàrl (hereinafter collectively referred to as ‘P&G’) and the first applicant, Henkel AG & Co. KGaA (the parent company of Henkel France), concerning an anti-competitive cartel on the market for consumer textile detergents in eight Member States, including France. The case was dealt with in accordance with the settlement procedure laid down in Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3). The representatives of the first applicant obtained access to the documents in the Commission’s file, after undertaking to keep those documents confidential, in accordance with Article 10a(2) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 [EC], as amended (OJ 2004 L 123, p. 18). The proceeding initiated by the Commission was closed by Commission Decision C(2011) 2528 final of 13 April 2011, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.579 – Consumer detergents), a summary of which was published in the Official Journal of the European Union of 2 July 2011 (OJ 2011 C 193, p. 14).
2 As is apparent from Decision C(2011) 2528, Henkel AG & Co. was the first undertaking to inform the Commission of the existence of the cartel in question. Consequently, pursuant to its Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’), the Commission granted it a total immunity from fines (fine set at EUR 0). By contrast, P&G and Unilever, which had also lodged requests, accompanied by several documents, that the Leniency notice be applied, obtained only a reduction of the fines which the Commission finally imposed on them, amounting, respectively, to EUR 211.2 million and EUR 104 million.
3 In parallel with Case COMP/39.579 investigated by the Commission, the French competition authority (‘the ADLC’) carried out an investigation on the basis of Article 101 TFEU and its national equivalent, namely Article L. 420-1 of the French Commercial Code, which concerned an anti-competitive cartel in the consumer textile detergents sector in France which had been brought to the attention of the ADLC by four detergent manufacturers operating in France. Those detergent manufacturers successively applied to the ADLC for the benefit of the French leniency regime on the basis of Article L. 464-2 of the French Commercial Code. [confidential] (1)
4 As is apparent from Article L. 461‑1 of the French Commercial Code, the ADLC is an independent administrative authority which ensures free competition and supports the competitive operation of markets at the European and international levels. The powers assigned to it are exercised by a college consisting of 17 members, including a president. According to Article L. 461‑4 of the French Commercial Code, the ADLC has preparatory inquiry units managed by a rapporteur general who appoints the assistant rapporteurs general, the permanent and non-permanent rapporteurs, and the investigators of the preparatory inquiry units. Those units carry out the investigations necessary for the application, inter alia, of Title II of Book IV of the French Commercial Code, which includes Article L. 420‑1. Article L. 461‑4 of the French Commercial Code provides, moreover, that a hearing officer, qualified to serve as a judge or offering equivalent guarantees of independence and experience is to be appointed to the ADLC. From the transmission of the statement of objections, the hearing officer collects the observations, if any, of the parties involved regarding the proceedings which concern them. He provides the president of the ADLC with a report evaluating those observations and proposing, if necessary, any measure allowing the improvement of the parties’ exercise of their rights.
5 Proceedings before the ADLC are governed by Articles L. 463‑1 to L. 463‑8 of the French Commercial Code. In accordance with Article L. 463‑2 of that Code, the Rapporteur General or an Assistant Rapporteur General which he appoints, notifies the objections to the parties concerned and the Commissaire du Gouvernement (Government Commissioner), who may consult the file and present their observations. Unless the Rapporteur General decides that the case will be examined by the ADLC without a report, the report is notified to the parties, to the Commissaire du Gouvernement, and to the ministers concerned. That report is accompanied by the documents which the rapporteur responsible for the file relies upon, and observations, if any, made by the parties concerned. The parties have two months to present a response. Under Article L. 463‑7 of the French Commercial Code, the parties may apply to be heard by the ADLC at the session in which the case is disposed of. That session is not public. The ADLC may also hear any person whose testimony seems likely to provide relevant information. The Rapporteur General or the Assistant Rapporteur General which he appoints and the Commissaire du Gouvernement may also present their observations.
6 By letter of 3 August 2010, sent to the Commission, the applicants identified certain documents in the file of procedure COMP/39.579 and stated why they considered that those documents would be very useful to them in their defence in the case before the ADLC. [confidential]
7 The Commission replied to that request by e-mail of 31 August 2010. It first indicated that Case COMP/39.579 was distinct from the case before the ADLC. It then noted that the representatives of the first applicant had agreed to keep the documents at issue confidential and that this obligation remained in force. Finally, it indicated to the applicants that the Commission’s authorisation was not necessary in order to ask the ADLC to request, on the basis of Article 11(2) of Regulation No 1/2003, the transmission of the documents at issue. It specified that, in the event that the applicants made such a request, they should indicate to the ADLC that they had identified the documents in question in their letter referred to in the previous paragraph. ADLC would be able, if necessary, to obtain a description of the documents in question from the Commission.
8 By letter of 14 September 2010, the applicants wrote to the Assistant Rapporteur General of the ADLC responsible for the file. They indicated that they considered that the documents referred to in their letter of 3 August 2010 contained evidence indispensable for the proper exercise of their rights of defence before the ADLC, to the extent that those documents could allow the applicants to show the international dimension of the case before the ADLC or establish other important aspects of that case. They therefore asked the ADLC to request the Commission, in accordance with Article 11(2) of Regulation No 1/2003, to transmit copies of the documents at issue.
9 The ADLC’s preparatory inquiry unit did not act on the applicants’ request. In paragraphs 366 to 371 of their report of 16 December 2010, they indicated, inter alia, the following:
[confidential]
10 By letter of 11 March 2011, the applicants, pursuant to Article R. 461‑9 of the French Commercial Code, made submissions to the Hearing Officer of the ADLC regarding what they perceived as difficulties in the exercise of their rights in the proceedings before the ADLC, relating to the Commission’s failure to transmit the documents at issue to the ADLC. Moreover, in their observations on the report referred to in the previous paragraph, the applicants maintained their request that the ADLC request the documents at issue from the Commission.
11 On 12 September 2011, the Assistant Rapporteur General responsible for the file wrote to the Commission. After recalling the facts summarised in paragraphs 8 to 10 above, he added the following:
‘Having regard to Henkel’s insistence, presented on the basis of the effective exercise of its rights of defence, that [the documents at issue] be placed in the file [of the case before the ADLC], I ask you to authorise [the ADCL] to access those documents and to place them in its file … so that [it] may use them to examine whether, as maintained by Henkel, they could contribute to establishing a ‘set of indicia showing the existence of a single, complex and continuous infringement’.
12 The Assistant Rapporteur General indicated, in the same letter, that the ADCL’s session was scheduled for 18 October 2011 and that the Hearing Officer was required to submit his report to the president of the ADLC at the latest ten working days prior to the session.
13 By letter of 30 September 2011 referring to ‘Case COMP/39.579 – Consumer Detergents – and Case 09/0007 F’ as its subject (‘the letter of 30 September 2011’), the Commission indicated that it was not in a position to transmit the documents requested, on the ground that those documents, submitted by undertakings other than the applicants and requesting leniency, enjoyed a particularly high confidentiality protection and that, moreover, under Article 12(2) of Regulation No 1/2003, they could be used as evidence only for the purpose for which they were collected. According to the Commission, the COMP/39.579 proceedings and the proceedings before the ADLC concerned different infringements.
14 On October 3 2011, the Hearing Officer of ADLC submitted his report. After recalling the facts summarised in paragraphs 8 to 13 above, he set out the following conclusion:
‘It would thus seem that [the ADLC’s] preparatory inquiry unit took all appropriate measures within its power to ensure respect for the rights of defence, to the extent that the parties sought to exercise them. As a result, it is found that all the means necessary to ensure the effective exercise of their rights were indeed made available to the [applicants].’
15 On 10 October 2011, the applicants sent a letter to the president of the ADLC, in which they challenged the reasons set out by the Commission to justify its refusal to transmit the documents at issue. They added that, despite the intervention of the Hearing Officer, they were still not in a position to exercise their rights of defence before the ADLC, given the impossibility of discussing those documents at the session of the ADLC. Accordingly, they requested the ADLC to postpone the session.
16 On 18 October 2011, the Rapporteurs, the Assistant Rapporteur General, the Commissaire du Gouvernement, and the representatives of the applicants and other undertakings implicated in the case before the ADLC were heard at a session of the latter. In that session, the applicants, inter alia, requested the ADLC to stay the proceedings, in the light of the Commission’s refusal, expressed by the letter of 30 September 2011, to transmit the documents which that letter concerned.
Procedure and forms of order sought
17 By application lodged at the Registry of the General Court on 30 November 2011, the applicants brought this action, in which they claim that the Court should:
– annul the Commission’s decision contained in the letter of 30 September 2011;
– order the Commission to grant them authorisation to put forward the requested documents in the proceedings before the ADLC, or in subsequent proceedings before the Cour d’appel de Paris (Court of Appeal, Paris);
– order the Commission to pay the costs;
– take any further action as the Court may deem appropriate.
18 By a separate document lodged at the Court Registry on 2 December 2011, the applicants applied for the case to be decided under an expedited procedure in accordance with Article 76a of the Rules of Procedure of the General Court. That application was rejected by decision of the General Court (Third Chamber) of 5 January 2012.
19 By a separate document lodged at the Court Registry on 2 December 2011 and registered as Case T‑607/11 R, the applicants also submitted an application for interim measures, within the meaning of Article 279 TFEU and Articles 104 to 110 of the Rules of Procedure. By order of the President of the General Court of 23 January 2012 in Case T‑607/11 R Henkel and Henkel France v Commission, not published in the ECR, the application for interim relief was dismissed and the costs reserved.
20 By a separate document lodged at the Registry of the Court on 16 February 2012, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court. It claims that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
21 The Commission informed the General Court on that occasion that, by its Decision No 11‑D‑17 of 8 December 2011, the ADLC had closed the proceedings before it. In that decision, it found that several undertakings, including the applicants, had infringed Article 101(1) TFEU and Article L. 420‑1 of the French Commercial Code by their participation in an anti-competitive cartel in the standard detergents sector as regards supermarkets and hypermarkets in France. In consequence, it imposed, inter alia, a fine on the applicants of over EUR 90 million. The Commission produced a copy of that decision in annex to its plea of inadmissibility.
22 By document lodged at the Court Registry on 23 February 2012, the Kingdom of Denmark requested leave to intervene in support of the form of order sought by the applicants. By order of 10 May 2012, the President of the Third Chamber of the General Court granted leave to intervene. By letter lodged at the Court Registry on 22 June 2012, the Kingdom of Denmark stated that it would not submit a statement in intervention on the admissibility of the action.
23 By document lodged at the Registry of the Court on 14 March 2012, Unilever PLC and Unilever NV applied for leave to intervene in support of the form of order sought by the Commission. The Commission and the applicants submitted their observations on that application on 19 and 24 April 2012 respectively.
24 The applicants submitted their observations on the plea of inadmissibility on 5 April 2012. In those observations, they modified the second head of claim in the application, stating that the General Court should order the Commission to grant them authorisation to put forward the requested documents in the ongoing proceedings before the Cour d’appel de Paris, in the context of their appeal against the decision of the ADLC referred to in paragraph 21 above, or before the ADLC in the event that the latter decides to reopen the examination of the case. For the remainder, they maintained the other heads of claim put forward in their application.
25 In the context of a measure of organisation of the procedure provided for in Article 64 of the Rules of Procedure, the General Court, on the one hand, invited the parties to respond to a question and, on the other, invited the applicants to respond to another question and to produce a document. The parties complied with those requests within the prescribed period, with the exception of the Kingdom of Denmark, which stated, by letter lodged at the Court Registry on 22 June 2012, that it would not respond to the question which the Court had put to all the parties.
Law
26 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case. Pursuant to Article 114(3) of the Rules of Procedure, unless the Court otherwise decides, the remainder of the proceedings are to be oral. Under Article 114(4) of the Rules of Procedure, the Court then decides on the application or reserves its decision for the final judgment.
27 Moreover, under Article 113 of the Rules of Procedure, the General Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it. It shall give its decision in accordance with Article 114(3) and (4) of the Rules of Procedure.
28 In the present case, the Court considers that, since its examination of the documents in the case-file has provided it with sufficient information, there is no need to open the oral procedure.
On the second and fourth heads of claim
29 The Commission claims that the second and fourth heads of claim raised by the applicants are inadmissible. It recalls, in that context, the case-law according to which it is not for the Union judicature, in an action for annulment of a decision taken by an institution, to issue directions to that institution. Moreover, it points out that, in its view, the issue of the possible use in any subsequent legal proceedings of the documents to which its letter of 30 September 2011 relates is a matter wholly outside the scope of the alleged decision contained in that letter.
30 The applicants respond that if the Court does not annul the decision of the Commission which, in its view, is contained in that letter, and if it does not order the Commission to grant them authorisation to use the documents at issue in the proceedings before the Cour d’appel de Paris, they will be unable to exercise their rights of defence in those proceedings, since they cannot challenge separately the confidentiality commitments, concerning those documents, undertaken in the context of the Commission proceedings. They add that the issue regarding the use of the documents at issue is not outside the scope of the decision which, in its view, is contained in the letter of 30 September 2011, since the Commission had to be aware of the fact that the ADLC’s request which gave rise to that decision was made in the applicants’ interests.
31 As the Commission rightly points out, it is settled case-law that the Community judicature is not entitled, when exercising judicial review of legality, to issue directions, regardless of the nature or the content of the contested measure (see Case C‑353/01 Mattila v Council and Commission [2004] ECR I‑1073, paragraph 15, and the case-law cited; order of the General Court in Case T‑256/10 P Marcuccio v Commission [2011] ECR II‑0000, paragraph 66).
32 It follows, in the present case, that the applicants’ second head of claim, which specifically asks the Court to issue directions to the Commission, must be rejected as inadmissible, and it is not necessary to rule on the lawfulness of the applicants’ modification of that head of claim in their observations on the plea of inadmissibility. That finding is not called into question by the applicants’ arguments that, if they are not authorised to use the documents which the letter of 30 September 2011 concerns, their rights of defence will be affected. It suffices to recall, in that respect, that the applicants have also claimed that the Court should annul the Commission decision allegedly contained in that letter and that if that claim succeeds, it would be for the Commission, in accordance with Article 266 TFEU, to take the necessary measures to comply with the judgment annulling the decision and to ensure, accordingly, the respect of any the applicants’ rights likely to be adversely affected by that decision.
33 The applicants’ fourth head of claim asks for the General Court to take any measure which it deems appropriate, but the applicants do not explain the nature and the scope of the measures whose adoption they seek. It must be pointed out, in that respect, that under Article 44(1)(d) of the Rules of Procedure the application is to contain the form of order sought by the applicant, which must be provided in a clear and accurate manner (Case T‑156/08 P R v Commission [2009] ECR II‑0000, paragraph 29). That is clearly not the case with regard to this head of claim which, accordingly, must also be rejected as inadmissible.
The claim for annulment
34 In its plea of inadmissibility, the Commission submits, primarily, that the letter of 30 September 2011 is not a reviewable act. In the alternative, it claims that, even if that letter constitutes a reviewable decision, that decision was withdrawn and replaced by another, included in a letter sent by the Commission to the ADLC on 23 November 2011. In the further alternative, it claims that, following the adoption by the ADLC of its decision in the case pending before it, the applicants no longer have any legal interest in the annulment of the decision allegedly contained in the letter of 30 September 2011. The Commission also disputes the applicants’ legal interest in the annulment of the decision allegedly contained in the letter of 30 September 2011 by claiming that, in acknowledging that the ADLC has jurisdiction over the proceedings concerning the French case, the applicants acknowledge that the documents at issue relate specifically to Case COMP/39.579, which does not have the same subject-matter as the case dealt with by the ADLC.
35 It must be held that the line of argument put forward by the Commission in its plea of inadmissibility raises not only the issue of the admissibility of the action, but also the issue of the need to adjudicate. According to the case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which it will be inadmissible. That purpose of the dispute must continue, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate. That presupposes that the action is liable, if successful, to procure an advantage to the party bringing it (see Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42 and the case-law cited).
36 In the present case, if it should be found that, after the action was brought, the applicants’ legal interest in bringing proceedings disappeared, it follows from the case-law referred to in the previous paragraph that this would justify the finding that the claim for annulment has become devoid of purpose and that there is no need to adjudicate on it, but not that the action should be rejected as inadmissible, as requested by the Commission. As the parties have been heard as regards the Commission’s line of argument mentioned above, the Court may, in accordance with Article 113 of the Rules of Procedure and without infringing the principle that the parties should be heard, make such a finding, if necessary.
37 In those circumstances, before examining the issue of whether the letter of 30 September 2011 contains a Commission decision which may be the subject of an action for annulment and, if so, whether that decision was withdrawn by its letter of 23 November 2011, as claimed by the Commission, it is necessary, assuming that the first of those questions must receive a response in the affirmative and the second a response in the negative, to examine whether, following the developments subsequent to the introduction of the action, the applicants still have a legal interest in bringing proceedings.
38 It must be stated, in that respect, that the request to transmit the documents at issue to the ADLC was submitted by the Assistant Rapporteur General of the ADCL responsible for the file – via the letter of 12 September 2011 referred to in paragraph 11 above – following the applicants’ request to that effect of 14 September 2010, which was initially rejected by the ADLC’s preparatory inquiry unit but repeated by the applicants. It does not follow from the wording of the letter of 12 September 2011 that the Assistant Rapporteur General intended to call into question the findings of the preparatory inquiry unit which led it to refuse to act on the applicants’ initial demand. Rather, the Assistant Rapporteur General decided to transmit the applicants’ request to the Commission, given the applicants’ insistence that the documents at issue be transmitted and with a view to completing the file made available to the college of the ADLC which would decide the case.
39 Moreover, it is clear from the information referred to in paragraphs 15 and 16 above that the applicants had the opportunity to explain to the college of the ADLC – both in writing and orally – why they considered that the documents at issue should be added to the file of the case before the ADLC. At the same time, they also requested that the ADLC postpone its session, scheduled for 18 October 2011, and then, following the rejection of that first request, that the proceedings be stayed.
40 The Commission’s letter of 23 November 2011, referred to in its plea of inadmissibility, was included in the annexes to that plea. It is clear from the wording of that letter that the Commission thereby indicated to the ADLC that it had ‘re-examined its initial position indicated in the letter of 30 September 2011’. That re-examination led it to envisage ‘potential modalities which would allow the [ADLC] to examine the documents at issue’. It therefore informed the ADLC that it had also contacted P & G and Unilever, in order to obtain their agreement to the possible transmission of the documents at issue. It added that, in the event that either of those parties did not agree to the transmission of those documents to the ADLC, it would be willing, nevertheless, to transmit the documents if the ADLC provided a written commitment that it would not use them in order to impose fines on the leniency applicants, on any other natural or legal person covered by that favourable treatment, or on their employees or former employees, as provided by Article 41(2) of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43). Accordingly, it asked the ADLC to provide it with that written commitment and to ‘confirm that the guarantees necessary for the authorisation of the transmission of documents, such as those referred to in paragraph 35 of the Leniency Notice, will be provided’.
41 By letter of 5 December 2011, also included by the Commission in the annexes to its plea of inadmissibility, the president of the ADLC replied to the Commission’s letter of 23 November 2011. He indicated that the contradictory procedure before the ADLC had been closed, that the case was no longer with the preparatory inquiry unit and that the deliberations had commenced. He then indicated that ‘accordingly, a transmission of the documents at issue [was] no longer necessary, unless the College refers the case back to the preparatory inquiry stage in order to obtain further information and another exchange of arguments between the parties, if that [proved] to be necessary.’ Furthermore, he indicated that the ADLC could provide the guarantee provided for in paragraph 35 of the Leniency Notice, as asked of it, but that it would not be possible to provide the written commitment referred to in paragraph 41(2) of the Commission Notice on cooperation within the Network of Competition Authorities.
42 Following that development, the Commission informed the applicants, by letter of 7 December 2011, a copy of which is also annexed to the plea of inadmissibility, and against which the applicants have brought a different action (Case T‑64/12 Henkel and Henkel France v Commission), that it was impossible to transmit the documents at issue to the ADLC.
43 In its decision of 8 December 2011, the ADLC examined and rejected the applicants’ application for a stay of proceedings (see paragraph 16 above). First it pointed out, in paragraph 357 of that decision, that in the context of the proceedings before the ADCL the lawful exercise of the applicants’ rights of defence was organised in accordance with the relevant provisions of the French Commercial Code. In requesting the Commission to transmit to it the documents sought by Henkel, the ADLC had agreed to go beyond the confines of the contradictory procedure under the French Commercial Code. The fact that at the time of the session of the ADLC and its decision the applicants had not been able to obtain the documents at issue was not attributable to the ADLC and could not constitute an infringement of the latter’s obligations, the scope of which is defined – in the light of the procedural autonomy which the Member States enjoy in this matter – by the relevant provisions of the French Commercial Code.
44 Secondly, the ADLC examined in paragraphs 358 to 360 of its decision, on the one hand, the nature of the connection between the documents at issue and the case before the ADLC and, on the other hand, how those documents could actually influence the exercise of the applicants’ rights of defence. As regards the first issue, the ADLC found that the documents at issue related to a case concerning an anti‑competitive practice that the Commission itself had classified as distinct from the case pending before the ADLC. The ADLC therefore found that it was necessary to recognise that the connection between those documents and the case before the ADLC was not ‘as close as [the applicants] claim’. As regards the second issue, the ADLC found that, as the applicants themselves acknowledged, the documents at issue were requested neither to challenge the ADLC’s jurisdiction to examine and potentially sanction the facts before it, nor to call into question the accuracy of those facts, their legal classification, or their imputability to the applicants. Instead, the transmission of those documents had been sought in order to show that the French infringement was ‘driven’ or ‘supplemented’ by a European element in respect of which both the Commission and the ADLC have wrongly refused to open proceedings. However, according to the ADLC, such a line of argument was inoperative, since it was only the objection notified by the prior inquiry units that defined the scope of the case which could be dealt with by the ADLC and, consequently, the scope of the rights of defence open to the parties implicated by that objection.
45 Thirdly, the ADLC pointed out, in paragraph 361 of its decision, that it was through their own conduct that the applicants found themselves in a situation which they claimed was harmful to their rights of defence. The first applicant is, in fact, one of the parties at issue in the case dealt with by the Commission. It, of its own volition, decided to enter into negotiations with the Commission, admitted to the objections which it was accused of by the Commission, and waived its right to bring an action against the Commission’s decision, even though it claimed, before the ADLC, that the infringement examined by the Commission was actually wider in scope than that punished in the latter’s decision, to the point that it encompassed or supplemented the practice at issue before the ADLC. In those circumstances, the ADLC found, in paragraph 362 of its decision, that it was somewhat paradoxical for the applicants to invoke the breach of their rights of defence before the ADLC in respect of another case, ‘when the party had itself foregone the exercise of those rights before the competent institution of the European Union at the time when such a discussion could have been effective’.
46 Moreover, in paragraphs 710 to 744 of its decision, the ADLC stated that the applicants were the second undertakings to have presented a leniency request to it relating to the practices at issue and could, therefore enjoy a partial exoneration from a fine. They had produced evidence which contributed to establishing the existence of the alleged practices and was of significant added value. Until, by its letter of 22 April 2010, the Commission informed the ADLC’s preparatory inquiry unit that its decision to initiate proceedings in no way concerned the objections notified to the applicants by the ADLC, the positions set out by the applicants regarding the connections between the two proceedings might have been considered as coming within the scope of the exercise of their rights of defence. However, the fact that the applicants continued, following the reception of the Commission’s letter, to claim that the preparatory inquiry unit of the ADLC was required to prove that there was no connection between the practices which it was examining and those examined by the Commission was not justifiable and had to lead to the conclusion that the applicants had not fully respected the obligations arising from their duty of cooperation. In the light of those considerations, the ADLC fixed the rate of reduction of the fine incurred by the applicants at 25%, ‘namely a figure within the margin envisaged by the leniency notice […] but less than the 30% which they claimed, at the least, to be entitled to’.
47 In light of all the foregoing, it must be found that, at the time when it delivered its decision, the ADLC was aware of the reasons for which the applicants considered that the documents referred to in its letter of 30 September 2011 were relevant to the case pending before the ADLC and were, in their view, indispensable to the exercise of their rights of defence. It was also aware of the wording of the Commission’s letter of 23 November 2011. Indeed, the president of the ADLC presided over the session of 18 October 2011, and signed the decision of 8 December 2011, and it was he who had responded to that letter, by his letter of 5 December 2011.
48 However, for the reasons set out in its decision and summarised in paragraphs 43 to 46 above – which are for the competent national court to review, if required – the ADLC found that it was not necessary to stay the proceedings until the documents in the file of the case before the Commission and referred to in the letter of 30 September 2011 had been transmitted to it, but that it was entitled, even in the absence of those documents, to rule on the substance of the case before it.
49 In addition, it must be found that the reasons justifying the ADLC’s decision did not relate to the fact that the Commission had refused to transmit the documents at issue, requested in the Assistant Rapporteur General’s letter of 12 September 2011, especially since the Commission stated that it was ready to reconsider that refusal, under certain conditions. It is clear from paragraphs 43 to 45 above, that the ADLC, in essence, considered that the transmission of the documents at issue was not necessary in order to guarantee the respect of the applicants’ rights of defence and that, moreover, those documents were in no way relevant to the analysis of the case before it.
50 In those circumstances, it must be held that the ADLC’s decision rendered the request sent to the Commission in the letter of 12 September 2011 devoid of purpose. It is clear from the wording used by the Assistant Rapporteur General in that letter that, although he did not share the applicants’ point of view as regards the relevance of the documents at issue to the case before the ADLC, he had decided to request the transmission of the documents at issue in order to supplement the file which would be submitted to the College of the ADLC. However the latter stated in its decision of 8 December 2011, in clear and specific terms, that it had no need of the documents at issue in order to rule on the case before it.
51 Accordingly, following the adoption of the decision of the ADLC of 8 December 2011, the request contained in the letter of 12 September 2011 and, consequently, the Commission’s response as indicated in the letter of 30 September 2011, as well as the request for annulment of the decision allegedly contained in that letter, became devoid of purpose. It cannot be considered that the applicants retain a legal interest in the annulment of that alleged decision, especially since the adoption of the ADLC’s decision brought an end to the proceedings before it, so that there is no other procedural step in which those documents could be examined, in the event that the request for annulment was granted and those documents were transmitted by the Commission to the ADLC.
52 In those circumstances, and without it being necessary to rule on the Commission’s other arguments seeking the rejection of the request for annulment as inadmissible, it must be found that there is no need to adjudicate on that request.
53 That conclusion is not called into question by the arguments to the contrary put forward by the applicants. They claim that they still have a legal interest in the annulment of the alleged Commission decision in order to use the documents in the proceedings before the Cour d’appel de Paris or, as the case may be, in the context of future proceedings before the ADLC, should the latter decide to reopen the case.
54 The applicants explain, in that respect, that they must be able to put forward the documents at issue in the proceedings pending before the Cour d’appel de Paris, failing which they may not be able to proceed successfully with the appeal that they have brought against the ADLC’s decision and to exercise, therefore, their right to effective judicial protection. Moreover, the Cour d’appel de Paris would itself need the documents at issue, as otherwise it would not have all of the information necessary to rule on the case pending before it. The applicants submit that under Article 4(3) TEU, the Commission is required to provide a national court enforcing Article 101 TFEU with all relevant evidence and it must, in that respect, carry out an assessment analogous to that which it carried out following the ADLC’s request seeking the transmission of the documents at issue. To conclude that the action has become devoid of purpose following the adoption of the ADLC’s decision would be clearly unjust for the applicants, since it would mean that the Commission could free itself from its duties of cooperation with national competition authorities by delaying the transmission of documents requested by a national competition authority until it closes the proceedings before it.
55 As regards that line of argument, it must first of all be recalled that the decision allegedly contained in the letter of 30 September 2011 did not concern a request from the applicants seeking authorisation to use the documents to which that decision refers. It was a reply to a request from the Assistant Rapporteur General responsible for the file, seeking the transmission of those documents so that they would be available to the College of the ADLC when it adopted its decision. Accordingly, annulment of the decision at issue would oblige the Commission to review, in the light of the reasons for the annulment, its reply to the ADLC’s request and, as the case may be, to transmit the requested documents to the ADLC. However, for the reasons set out above, such an annulment has become devoid of purpose.
56 On the other hand, such an annulment would not automatically mean, as the applicants appear to consider, that the applicants would be free to use the copies of the documents at issue which they already have.
57 As for the applicants’ argument alleging that the Cour d’appel de Paris must have the documents at issue in order to rule on the case before it, it must be recalled that the Cour d’appel de Paris is called upon to review the decision of the ADLC, which itself ruled on the case before it without having those documents. As has already been noted, it will be for the Cour d’appel de Paris, if necessary, to rule, in that context, on the reasons justifying the ADLC’s decision not to stay proceedings for as long as it did not have the documents at issue.
58 Nevertheless, it cannot be excluded that the Cour d’appel de Paris, in the context of its sovereign assessment of the requirements of the proceedings before it, may decide that it must have access to the documents referred to in the request for transmission of 12 September 2011, even though those documents were not available to the ADLC when it adopted its decision. However, in that event, it will be for the Cour d’appel de Paris to request the Commission, in accordance with the rules governing the proceedings before it, to transmit those documents. By contrast, and contrary to what the applicants seem to consider, the annulment of the decision allegedly contained in the letter of 30 September 2011 would not automatically lead to the transmission of the documents at issue to the Cour d’appel de Paris.
59 It follows from the foregoing considerations that there is no need to adjudicate on the applicants’ plea for annulment and that the remainder of the application should be dismissed as inadmissible.
60 Nor, in those circumstances, is there any need to adjudicate on the applications for leave to intervene submitted by Unilever PLC and Unilever NV.
Costs
61 Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under the first subparagraph of Article 87(4) of the Rules of Procedure, Member States which intervene in the proceedings are to bear their own costs. Lastly, under Article 87(6), where a case does not proceed to judgment, the costs are in the discretion of the Court.
62 In the present case, the Commission applied for the applicants to be ordered to pay the costs. The applicants have been unsuccessful as regards their second and fourth heads of claim. Moreover, the General Court finds that the applicants pursued the proceedings even though it was clear, following the adoption of ADLC’s decision shortly after the action was brought, that the plea for annulment had become devoid of purpose. Consequently, the applicants must be ordered to bear their own costs and, in addition, to pay the costs incurred by the Commission, including those incurred in the application for interim measures. The Kingdom of Denmark is to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no need to adjudicate on the first head of claim of the action, seeking the annulment of the decision of the European Commission allegedly contained in its letter of 30 September 2011 to the French competition authority.
2. The action is dismissed as to the remainder.
3. There is no need to adjudicate on the applications for leave to intervene of Unilever PLC and Unilever NV.
4. The applicants, Henkel AG & Co. KGaA and Henkel France, are ordered to bear their own costs and to pay the costs incurred by the Commission, including those incurred in the application for interim measures in Case T‑607/11 R. The Kingdom of Denmark is ordered to bear its own costs.
Luxembourg, 7 March 2013.