# C_2011355EN.01002302.xml

| 3.12.2011 | EN | Official Journal of the European Union | C 355/23 |
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3.12.2011

EN

Official Journal of the European Union

C 355/23

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Action brought on 3 October 2011 — Deutsche Bahn and Others v Commission

(Case T-521/11)

2011/C 355/43

Language of the case: German

Parties

Parties

Applicants: Deutsche Bahn AG (Berlin, Germany), Deutsche Umschlaggesellschaft Schiene-Straße (DUSS) mbH (Bodenheim, Germany), DB Netz AG (Frankfurt am Main, Germany), DB Schenker Rail GmbH (Mainz, Germany), DB Schenker Rail Deutschland AG (Mainz, Germany) (represented by: W. Deselaers, J. Brückner and O. Mross, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Annul the Commission's inspection decision of 14 July 2011, notified on 26 July 2011; |
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Annul the Commission's inspection decision of 14 July 2011, notified on 26 July 2011;

| — | Annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision; |
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Annul all measures taken on the basis of the inspections, which took place on the basis of that unlawful decision;

| — | In particular order the Commission to return all the copies of the documents made during the inspections, on pain of annulment of the future Commission decision by the General Court; and |
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In particular order the Commission to return all the copies of the documents made during the inspections, on pain of annulment of the future Commission decision by the General Court; and

| — | Order the Commission to pay the costs. |
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Order the Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The applicants seek the annulment of Commission Decision C(2011) 5230 of 14 July 2011 (Case COMP/39.678 — DB I and Case COMP/39.731 — DB II), ordering, in accordance with Article 20(4) of Regulation No 1/2003, inspections of Deutsche Bahn AG and all legal persons directly or indirectly controlled by the latter, by reason of a potentially anti-competitive model of a strategic use of the infrastructure administered by companies of the DB group.

In support of the action, the applicants rely on five pleas in law:

| 1. | First plea: infringement of the fundamental right to inviolability of one's premises by reason of lack of prior judicial authorisation. |
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1.

First plea: infringement of the fundamental right to inviolability of one's premises by reason of lack of prior judicial authorisation.

| 2. | Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from a factual and legal point of view. |
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2.

Second plea: infringement of the fundamental right to an effective legal remedy by reason of the lack of possibility of prior judicial review of the inspection decision, both from a factual and legal point of view.

| 3. | Third plea: unlawfulness of the inspection decision, as it is based on information obtained by the Commission in infringement of defence rights.
  The information was obtained by the Commission in the course of implementing the inspection decision of 14 March 2011 in the context of a very broad inquiry (‘fishing expedition’). The information obtained when implementing the second inspection decision of 30 March 2011 was also unlawful because the decision on which that search was based also relied on the unlawfully obtained information and that information had also been obtained on the basis of an unlawful inspection decision. |
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3.

Third plea: unlawfulness of the inspection decision, as it is based on information obtained by the Commission in infringement of defence rights.

The information was obtained by the Commission in the course of implementing the inspection decision of 14 March 2011 in the context of a very broad inquiry (‘fishing expedition’). The information obtained when implementing the second inspection decision of 30 March 2011 was also unlawful because the decision on which that search was based also relied on the unlawfully obtained information and that information had also been obtained on the basis of an unlawful inspection decision.

| 4. | Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific description of the subject-matter of the inspection. |
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4.

Fourth plea: infringement of defence rights by reason of a disproportionately wide and non-specific description of the subject-matter of the inspection.

| 5. | Fifth plea: infringement of the principle of proportionality. |
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5.

Fifth plea: infringement of the principle of proportionality.

The Commission does not have jurisdiction over the subject-matter of the inspection and could in any event have obtained the relevant information through the competent Bundesnetzagentur [federal network agency] or by means of a simple request for information from the applicants.

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