Case T‑410/18
Silgan Closures GmbH
and
Silgan Holdings, Inc.
v
European Commission
Order of the General Court (Fifth Chamber) of 15March 2019
(Action for annulment— Competition— Agreements, decisions and concerted practices— Market in metal packaging— Decision to open an investigation— Act not open to challenge— Inadmissibility)
1.Action for annulment— Actionable measures— Concept— Measures producing binding legal effects— Preparatory measures— Not included
(Art. 263 TFEU)
(see paragraphs12-15)
2.Action for annulment— Actionable measures— Concept— Measures producing binding legal effects— Commission decision to initiate an administrative proceeding for the application of the rules on competition— Not included
(Arts 101 and 263 TFEU; Council Regulation No1/2003, Art. 11(6); Commission Regulation No773/2004, Arts 2(1) and 10)
(see paragraphs16-26)
Résumé
In the order of 15March 2019, Silgan Closures and Silgan Holdings v Commission (T‑410/18), the General Court dismissed the action for annulment of the Commission’s decision to initiate, in accordance with Article2(1) of Regulation No773/2004,(1) a proceeding for the application of Article101 TFEU against several companies active in the metal packaging sector, including the applicants. The Court upheld the plea of inadmissibility raised by the Commission and ruled that the contested decision was a preparatory act which did not produce legal effects vis-à-vis the applicants for the purposes of Article263 TFEU.
The Court, first of all, recalled that the effects and legal character of the contested decision must be determined in the light of the purpose of that decision in the context of the procedure resulting in a decision pursuant to Chapter III of Regulation No1/2003.(2)
Regarding, more specifically, the consequence provided for in Article11(6) of Regulation No1/2003— that the initiation of the proceeding referred to in the contested decision relieves the competition authorities of the Member States of their competence to apply Article101 TFEU in respect of the acts that are the subject of that proceeding— the Court concluded that that consequence does not adversely affect the interests of the applicants, but has the effect of protecting them from parallel proceedings brought by those authorities.
The Court found that that holds true not only when no national authority has opened a relevant proceeding, but, a fortiori, when such authority has initiated such a proceeding and is relieved of its competence by virtue of Article11(6) of Regulation No1/2003. If a decision to initiate a proceeding under Article101 TFEU does not affect the legal position of the undertaking concerned when it is not, until that point, the subject of any other proceeding, this is particularly the case when a proceeding has already been initiated against the undertaking in question in an investigation opened by a national authority.
According to the Court, the applicants therefore incorrectly rely on Articles104 and 105 TFEU, which provide for a certain number of interactions between the Commission’s competence and that of the Member States regarding the implementation, inter alia, of Article101 TFEU. Those provisions concern only potential cases which are not covered by a regulation implementing Article101 TFEU, adopted on the basis of Article103 TFEU, such as Regulation No1/2003.
The Court noted that there is nothing to prevent the applicants from requesting that the Commission notice on immunity from fines and reduction of fines in cartel cases be applied to them. Moreover, in the case of a cartel the anticompetitive effects of which are liable to manifest themselves in several Member States and, consequently, may give rise to the intervention of various national competition authorities, as well as the Commission, it is in the interest of an undertaking which wishes to benefit from the leniency system to submit applications for immunity, not only to the national authorities potentially competent to apply Article101 TFEU, but also to the Commission.
In such circumstances, it therefore falls to the undertaking concerned wishing to benefit from such a system to undertake the necessary steps so that, if the Commission were to exercise its competence under Regulation No1/2003, the potential leniency advantages to that undertaking would be affected as little as possible, or even not at all.
Furthermore, the Court ruled that the interruption of the time limit brought about by the adoption of the contested decision amounted to no more than the ordinary effects of a procedural step affecting exclusively the procedural, not legal, position of the undertaking concerned by the investigation. That assessment relating to the purely procedural nature of those effects is valid not only in the light of the interruption of the limitation period laid down in Article25 of Regulation No1/2003, but also in the light of the interruption of the limitation period in respect of the powers of the national authorities to impose any penalties that may be provided for by national law.
1Commission Regulation (EC) No773/2004 of 7April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L123, p.18).
2Council Regulation (EC) No1/2003 of 16December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L1, p.1).