ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
10 July 2012 (1)
(Partial removal from the register)
In Case T‑164/12,
Alstom, established in Levallois Perret (France),
Alstom Holdings, established in Levallois Perret (France),
Alstom Grid SAS, established in Paris (France),
Alstom Grid AG, established in Oberentfelden (Switzerland),
represented by J. Derenne, lawyer, N. G. Heaton, P. T. Chaplin and M. Farley, Solicitors,
applicants,
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 applicants (or their predecessors) 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 applicants 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‑164/12.
2 By separate document lodged at the Registry of the General Court on 10 April 2012, the applicants lodged an application for interim measures. That case was registered as Case T‑164/12 R.
3 By letter lodged at the Registry of the General Court on 21 May 2012, the applicants Alstom Holdings, Alstom Grid SAS and Alstom Grid AG 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 three 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 applicants on 15 May 2012, they wished to discontinue proceedings in Case T‑164/12. In accordance with Article 87(5) of the Rules of Procedure, the applicants requested that, as their decision to withdraw from proceedings had been caused by the conduct of the defendant, the latter should bear the costs of the applicants.
4 By separate letter lodged at the Registry of the General Court on 21 May 2012 the applicants Alstom Holdings, Alstom Grid SAS and Alstom Grid AG informed the Court that they wished to discontinue proceedings in Case T‑164/12 R. By order of 13 June 2012 the President of the General Court ordered that the names of the applicants Alstom Holdings, Alstom Grid SAS and Alstom Grid AG in Case T‑164/12 R be removed from the register and that the decision as to costs be reserved.
5 By letter lodged at the Registry of the Court on 14 June 2012, the defendant informed the Court that it had no objections to the partial withdrawal and requested that each party should be ordered to bear its own costs.
6 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.
7 The conduct of the Commission was such as to justify its bearing the costs linked to the applicants’ 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 applicants 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 applicants’ three pleas. In its observations on the application for interim measures, the Commission recognized that, ‘[h]aving considered the [a]pplicants’ arguments, on 26 April 2012, the Director General of DG Competition sent a letter to the [a]pplicants informing them 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 applicants’ first plea.
8 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 applicants’ second and third pleas, 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 applicants’ second and third pleas.
9 In this respect, it is appropriate to decide that the Commission should bear its own costs and a third of the costs of the applicants Alstom Holdings, Alstom Grid SAS and Alstom Grid AG in Case T‑164/12 and Case T‑164/12 R and that the applicants should bear two thirds of their own costs in the said Cases.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. In Case T-164/12, the names of the applicants Alstom Holdings, Alstom Grid SAS and Alstom Grid AG are removed from the register of the General Court.
2. The European Commission shall bear its own costs and a third of the costs of Alstom Holdings, Alstom Grid SAS and Alstom Grid AG in Case T‑164/12 and Case T‑164/12 R.
3. Alstom Holdings, Alstom Grid SAS and Alstom Grid AG shall bear two thirds of their own costs in Case T‑164/12 and Case T‑164/12 R.
Luxembourg, 10 July 2012.