# C_2014024EN.01000902.xml

| 25.1.2014 | EN | Official Journal of the European Union | C 24/9 |
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25.1.2014

EN

Official Journal of the European Union

C 24/9

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Appeal brought on 15 November 2013 by Deutsche Bahn and Others against the judgment of the General Court (Fourth Chamber) delivered on 6 September 2013 in Joined Cases T-289/11, T-290/11 and T-521/11 Deutsche Bahn and Others v European Commission

(Case C-583/13 P)

2014/C 24/17

Language of the case: German

Parties

Parties

Appellants: Deutsche Bahn AG, DB Mobility Logistics AG, DB Energie GmbH, DB Netz AG, DB Schenker Rail GmbH, DB Schenker Rail Deutschland AG, Deutsche Umschlaggesellschaft Schiene-Straße mbH (DUSS) (represented by: W. Deselaers, E. Venot, J. Brückner, lawyers)

Appellants:

Other parties to the proceedings: European Commission, Kingdom of Spain, European Council, EFTA Surveillance Authority

Other parties to the proceedings:

Form of order sought

Form of order sought

The appellants claim that the Court should:

| — | set aside the judgment of the General Court of 6 September 2013 in Joined Cases T-289/11, T-290/11 and T-521/11; |
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set aside the judgment of the General Court of 6 September 2013 in Joined Cases T-289/11, T-290/11 and T-521/11;

| — | annul the Commission’s decisions C(2011) 1774 of 14 March 2011, C(2011) 2365 of 30 March 2011 and C(2011) 5230 of 14 July 2011, which ordered investigations of Deutschen Bahn AG and all of its subsidiaries (Cases COMP/39.678 and COMP/39.731) pursuant to Article 20(4) of Council Regulation (EC) No. 1/2003; |
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annul the Commission’s decisions C(2011) 1774 of 14 March 2011, C(2011) 2365 of 30 March 2011 and C(2011) 5230 of 14 July 2011, which ordered investigations of Deutschen Bahn AG and all of its subsidiaries (Cases COMP/39.678 and COMP/39.731) pursuant to Article 20(4) of Council Regulation (EC) No. 1/2003;

| — | order the Commission to pay the costs of the proceedings at first instance and of the appeal. |
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order the Commission to pay the costs of the proceedings at first instance and of the appeal.

Pleas in law and main arguments

Pleas in law and main arguments

The appellants base their appeal on four grounds of appeal:

| | First, the General Court has misinterpreted and misapplied the fundamental right to inviolability of one’s premises and the settled case-law of the European Court of Human Rights. Specifically in the context of the scope of the infringement of that fundamental right and the risk of irreparable harm, it is disproportionate for the Commission, which also acts as the investigative authority and has broad discretion, carries out investigations without prior authorisation from a court. |
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First, the General Court has misinterpreted and misapplied the fundamental right to inviolability of one’s premises and the settled case-law of the European Court of Human Rights. Specifically in the context of the scope of the infringement of that fundamental right and the risk of irreparable harm, it is disproportionate for the Commission, which also acts as the investigative authority and has broad discretion, carries out investigations without prior authorisation from a court.

| | Second, the General Court has misinterpreted and misapplied the fundamental right to effective judicial review. Mere ex post judicial review does not offer the undertakings concerned effective judicial review of Commission investigations. |
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Second, the General Court has misinterpreted and misapplied the fundamental right to effective judicial review. Mere ex post judicial review does not offer the undertakings concerned effective judicial review of Commission investigations.

| | Third, the General Court has incorrectly categorised the documents relating to alleged infringements of competition law as being chance discoveries, which were obtained in the context of the investigation outside of the scope of the inquiry, although those documents were subject to a prohibition on use. The Commission's agents had been informed before the start of that investigation of suspicions concerning an area outside of the subject-matter of the investigation. Thereby the Commission artificially created the chance and unlawfully potentially broadened the exception to chance discoveries established by the Court of Justice (1) which must be interpreted restrictively. |
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Third, the General Court has incorrectly categorised the documents relating to alleged infringements of competition law as being chance discoveries, which were obtained in the context of the investigation outside of the scope of the inquiry, although those documents were subject to a prohibition on use. The Commission's agents had been informed before the start of that investigation of suspicions concerning an area outside of the subject-matter of the investigation. Thereby the Commission artificially created the chance and unlawfully potentially broadened the exception to chance discoveries established by the Court of Justice (1) which must be interpreted restrictively.

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| | Finally, the General Court misapplied the rules on the burden of proof. It appears to be logical or at the least it cannot be excluded that certain documents were obtained as apparent ‘chance discoveries’ only because of prior unlawful information from Commission agents, that is, concerning an area outside of the subject-matter of the investigation. Since it is impossible for the appellants to establish the proof of such causality and since that circumstance is not imputable to them, a reversal of the burden of proof whereby it is for the Commission to adduce the evidence that those documents were in fact the result of a chance discovery should be required. |
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Finally, the General Court misapplied the rules on the burden of proof. It appears to be logical or at the least it cannot be excluded that certain documents were obtained as apparent ‘chance discoveries’ only because of prior unlawful information from Commission agents, that is, concerning an area outside of the subject-matter of the investigation. Since it is impossible for the appellants to establish the proof of such causality and since that circumstance is not imputable to them, a reversal of the burden of proof whereby it is for the Commission to adduce the evidence that those documents were in fact the result of a chance discovery should be required.

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(1)  Judgment of the Court in Case 85/87 Dow Benelux v Commission [1989] ECR-3137.

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Dow Benelux

Commission

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