ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
6 July 2012 (1)
(Removal from the register)
In Case T‑173/12,
Areva SA, established in Paris (France), represented by R. Webber, J. Rickard and M. Readings, Solicitors,
applicant,
v
European Commission, represented by N. Khan, A. Antoniadis and P. J. O. Van Nuffel, acting as Agents,
defendant,
ANNULMENT of the Commission’s decision of 26 January 2012 to send to the High Court of England and Wales, for the purposes of national proceedings, certain documents lodged with the Commission by the applicant and its subsidiaries in the context of competition proceedings relating to a cartel in the Gas Insulated Switch Gear sector [COMP/38.899 – Gas Insulated Switchgear (OJ 2008 C 5, p. 7)].
1 The applicant brought the present action by application lodged at the Registry of the General Court on 10 April 2012. That case was registered as Case T‑173/12.
2 By separate document lodged at the Registry of the General Court on 13 April 2012, the applicant lodged an application for interim measures. That case was registered as Case T‑173/12 R.
3 The application in Case T‑173/12 was put in order on 7 May 2012.
4 By letter lodged at the Registry of the General Court on 22 May 2012, the applicant informed the Court in accordance with Article 99 of the Rules of Procedure that, as a consequence of the Commission having conceded in respect of the first of the two pleas made in the application, in the Commission’s observations on the application for interim measures submitted on 10 May 2012 and received by the applicant on 15 May 2012, the applicant wished to discontinue proceedings in Cases T‑173/12 and T‑173/12 R. In accordance with Article 87(5) of the Rules of Procedure, the applicant requested that, as its decision to withdraw from proceedings had been caused by the conduct of the defendant, the latter should bear the costs of the applicant or, in the alternative, that the defendant should be ordered to bear its own costs.
5 By order of 13 June 2012 the President of the General Court ordered that Case T‑173/12 R be removed from the register and that the decision as to costs be reserved.
6 The application was served on the defendant and the latter submitted its observations on the discontinuance on 15 June 2012. The Commission requested that each of the parties be ordered to bear its own costs.
7 According to Article 87(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in observations of the other party on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of that party.
8 The conduct of the Commission was such as to justify its bearing the costs linked to the applicant’s first plea. Indeed, the Commission originally stated, in its letter of 26 January 2012, that ‘all leniency information ha[d] been removed by [it] in cooperation with all the leniency applicants in the [Gas Insulated Switchgear] case, from the requested replies prior to their transmission to the High Court’. In the said letter, it reminded the applicant of the possibility of challenging its decision before the General Court and of requesting interim measures from that court. Only after the lodging of the application and the application for interim measures did the Commission concede the first of the applicant’s two pleas. In its observations on the application for interim measures, the Commission recognized that, ‘[h]aving considered the [a]pplicant’s arguments, on 26 April 2012, the Director General of DG Competition sent a letter to the [a]pplicant informing it that, since [a document it intended to transmit to the High Court] “might be interpreted as containing leniency information”, [it] had decided to amend the version of [that document] to exclude the alleged leniency material’. In light of the error made by the Commission when it decided to transmit leniency information contained in a document, it appears justified to order it to bear all the costs linked to the applicant’s first plea.
9 However, as stated by the Commission in its observations on the discontinuance, since its amendment to the decision of 26 January 2012 did not affect its decision to transmit some information of possible confidential character, challenged by the applicant’s second plea, the discontinuance of the proceedings in this respect cannot be attributed in any way to the abovementioned error made by the Commission. As a consequence, it does not appear justified to order the Commission to bear the costs linked to the applicant’s second plea.
10 In this respect, it is appropriate to decide that the Commission should bear its own costs and half of the costs of the applicant in Case T‑173/12 and Case T‑173/12 R and that the applicant should bear half of its own costs in the said Cases.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
hereby orders :
1. Case T‑173/12 is removed from the register of the General Court.
2. The European Commission shall bear its own costs and half of the costs of Areva SA in Case T‑173/12 and Case T‑173/12 R.
3. Areva SA shall bear half of its own costs in Case T‑173/12 and Case T‑173/12 R.
Luxembourg, 6 July 2012.