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Action brought on 7 April 2009 - Nexans France and Nexans v Commission

(Case T-135/09)

Language of the case: English

Parties

Applicants: Nexans France SAS and Nexans SA (Paris, France) (represented by: M. Powell, Solicitor and J.-P. Tran Thiet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

annul the Commission's decision of 9 January 2009 - Case COMP/39610 ­ Surge;

declare unlawful the Commission's decision to remove four DVD-ROMs and a copy of the whole hard drive of the laptop of an employee of Nexans France, for review at its premises in Brussels at a later date;

annul the Commission's decision to interview a Nexans France employee on 30 January 2009;

order the Commission to return to Nexans France any documents or evidence which it might have obtained pursuant to the annulled decisions, including without limitation: (a) documents outside the proper product scope of the dawn raid; (b) documents relating to electrical cable projects located outside the European Economic Area; (c) documents seized improperly from the hard drive and DVD-ROMs; and (d) statements created during or based on interviews of the Nexans France employee;

order the Commission to refrain from using, for the purposes of proceedings in respect of an infringement of the Community competition rules, any documents or evidence which it might have obtained pursuant to the annulled decisions;

order the Commission to refrain from transmitting such documents or evidence (or derivatives or information based thereon) to competition authorities in other jurisdictions;

order the Commission to pay the costs of the proceedings;

take such other or further steps as justice may require.

Pleas in law and main arguments

In the present case, the applicants seek the annulment of Commission decision C(2009) 92/1 of 9 January 2009 ordering Nexans SA and all companies directly or indirectly controlled by it, including Nexans France SAS to submit to an inspection in accordance with Article 20, paragraph 4 of Council Regulation 1/2003¹ (Case COMP/39610-Surge) as well as the way in which it was executed.

In support of its claims, the applicants argue that the contested decision is in breach of the applicants' fundamental rights, including the rights of defence, the right to a fair legal process, the privilege against self-incrimination and the presumption of innocence and right to privacy. Furthermore, they submit that in the execution of the contested decision the Commission went beyond the scope of the investigation.

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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 L 1, p. 1