Action brought on 9 June 2011 - Holcim (Deutschland) and Holcim v Commission
(Case T-293/11)
Language of the case: German
Parties
Applicants: Holcim AG (Hamburg, Germany) and Holcim Ltd (Zurich, Switzerland) (represented by: P Niggemann and K Gaβner, lawyers)
Defendant: European Commission
Form of order sought
The applicants claim that the General Court should:
annul the defendant's decision of 30 March 2011, adopted in proceedings under Article 18(3) of Council Regulation (EC) No 1/2003 in Case COMP/39520 - Cement and related products;
order the defendant to pay the costs of the proceedings.
Pleas in law and main arguments
In support of their action, the applicants rely on eight pleas in law.
First plea in law: there was no valid notification of the information decision
Before issuing the information decision the defendant was provided with powers of attorney in respect of Holcim AG (the first applicant) and statements from all the Holcim group companies concerned agreeing to use English as the language of the case. However, the information decision was addressed to Holcim Ltd (the second applicant) and 'served on' Holcim AG (the first applicant), even though there was no power of representation to that effect. The working language of Holcim Ltd and of the vast majority of the other companies concerned of the Holcim group is English, with the result that it was not possible to take sufficient note of the decision.
Second plea in law: the time limit within which to reply was too short and the Commission refused to extend that time limit
The information decision concerns a vast amount of detailed information on 15 group companies (such as transaction data, imports and exports, production data, market shares etc) over a period of 10 years. On the basis of the draft decision, thus at an early stage, the applicants gave the Commission detailed reasons why the 12-week time limit to provide the requested information was clearly too short. Given that the proceedings had already been underway for two and a half years and the applicants had already cooperated extensively with the Commission it was appropriate to extend the time limit. Moreover, the Commission itself delayed the data collection and made it more difficult by drafting the information decision in German, in spite of the applicants' consent to continue using English as the language of the case, thereby making it impossible for two thirds of the Holcim group companies to work with it.
Third plea in law: the Commission required Holcim to provide data and information which the latter did not have at its disposal
To a large extent, the information decision requires data and information from the applicants which they do not have at their disposal in the required form. Moreover, data is required which the applicants could only have produced at an exorbitant cost in terms of staff and time as a result of a change in their IT system. Such efforts do not fall within the requirement to produce information in accordance with the decision.
4. Fourth plea in law: infringement of the duty to give reasons
In the information decision, sufficient grounds are neither given for the investigation nor the choice of means of investigation, that it to say one which prescribes a penalty.
5. Fifth plea in law: infringement of the requirement that the means be necessary
Thus far the applicants have complied extensively and in full with every request for information, with the result that there was no justification for adopting an information decision prescribing a penalty instead of the less drastic option of informal requests for information.
6. Sixth plea in law: infringement of the principle of precision
In several respects, the information decision is not sufficiently clear in relation to the requested data and information, the burden of which is borne exclusively by the applicants.
7. Seventh plea in law: infringement of the general principle of proportionality
Given that the proceedings have been under way for two and a half years the ambiguous and vague nature of the data and information collection on such a scale is disproportionate, particularly since the Commission has requested comparable information on various occasions in different formats. The Commission's refusal to extend the time limit is grossly disproportionate given the facts and that the proceedings have already been underway for two and a half years.
8. Eighth plea in law: the defendant did not have the authority to ask questions relating to Holcim (Česko) a.s. in respect of the period prior to the accession of the Czech Republic to the European Union
Requesting data for the period prior to a country's accession to the European Union is not admissible.
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