# C_2023261EN.01004001.xml

| 24.7.2023 | EN | Official Journal of the European Union | C 261/40 |
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24.7.2023

EN

Official Journal of the European Union

C 261/40

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Action brought on 30 May 2023 — Red Bull and Others v Commission

(Case T-306/23)

(2023/C 261/55)

Language of the case: German

Parties

Applicants: Red Bull GmbH (Fuschl am See, Austria), Red Bull France SASU (Paris, France), Red Bull Nederland BV (Amsterdam, Netherlands) (represented by: H. Wollmann, F. Urlesberger, J. Schindler and F. Dethmers, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul Commission decision C (2023) 1689 final of 8 March 2023 ordering an inspection; |
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annul Commission decision C (2023) 1689 final of 8 March 2023 ordering an inspection;

| — | annul any measure ordered by the Commission as part of the inspection; in particular, the Court should declare the continuation of the inspection inadmissible and order the Commission to return all the copies of documents made and taken by the authority during the inspection; and |
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annul any measure ordered by the Commission as part of the inspection; in particular, the Court should declare the continuation of the inspection inadmissible and order the Commission to return all the copies of documents made and taken by the authority during the inspection; 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

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

| 1. | First plea in law: Manifest unfoundedness of the inspection decision
  Article 1 of the inspection decision should be annulled because the allegations contained therein are manifestly unfounded. Even assuming that the factual assumptions of the Commission were correct (quod non), they would not constitute an infringement of Article 101 or Article 102 TFEU on the basis of the established case-law of the Court of Justice, the Commission’s own guidelines and publicly available information which was available to the Commission before it adopted the inspection decision. |
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1.

First plea in law: Manifest unfoundedness of the inspection decision

Article 1 of the inspection decision should be annulled because the allegations contained therein are manifestly unfounded. Even assuming that the factual assumptions of the Commission were correct (quod non), they would not constitute an infringement of Article 101 or Article 102 TFEU on the basis of the established case-law of the Court of Justice, the Commission’s own guidelines and publicly available information which was available to the Commission before it adopted the inspection decision.

| 2. | Second plea in law: Insufficient indications for the adoption of an inspection decision
  The Commission did not appear to have sufficient indications of anti-competitive behaviour at the time of the adoption of its decision to justify an inspection. |
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2.

Second plea in law: Insufficient indications for the adoption of an inspection decision

The Commission did not appear to have sufficient indications of anti-competitive behaviour at the time of the adoption of its decision to justify an inspection.

| 3. | Third plea in law: Defective statement of reasons and vagueness of the inspection decision
  Article 1 of the inspection decision should be annulled because it is not sufficiently reasoned and contains an unlimited and unspecific description of the subject matter of the inspection, which does not enable the applicants to identify, in an unequivocal manner, their obligations to cooperate in the inspection. |
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3.

Third plea in law: Defective statement of reasons and vagueness of the inspection decision

Article 1 of the inspection decision should be annulled because it is not sufficiently reasoned and contains an unlimited and unspecific description of the subject matter of the inspection, which does not enable the applicants to identify, in an unequivocal manner, their obligations to cooperate in the inspection.

| 4. | Fourth plea in law: Infringement of the principle of proportionality
  Article 1 of the inspection decision and the further decisions linked to it, which the Commission took during the investigation, should be annulled on the grounds of infringement of the principle of proportionality. This applies in particular to the continuation of the inspection ordered by the Commission, at the defendant’s premises in Brussels and for an unlimited period, which interferes excessively with the applicants’ rights. |
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4.

Fourth plea in law: Infringement of the principle of proportionality

Article 1 of the inspection decision and the further decisions linked to it, which the Commission took during the investigation, should be annulled on the grounds of infringement of the principle of proportionality. This applies in particular to the continuation of the inspection ordered by the Commission, at the defendant’s premises in Brussels and for an unlimited period, which interferes excessively with the applicants’ rights.

| 5. | Fifth plea in law: Infringement of essential procedural requirements and rights of defence
  The Commission failed to ensure that the competent Austrian authorities had all the means at their disposal to exercise their power of review over the observance of the applicants’ fundamental rights during the inspection. In doing so, the Commission infringed essential procedural requirements and impaired the applicants’ rights of defence. In addition, the Commission infringed the applicants’ right to legal assistance, which is protected by the Charter of Fundamental Rights. |
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5.

Fifth plea in law: Infringement of essential procedural requirements and rights of defence

The Commission failed to ensure that the competent Austrian authorities had all the means at their disposal to exercise their power of review over the observance of the applicants’ fundamental rights during the inspection. In doing so, the Commission infringed essential procedural requirements and impaired the applicants’ rights of defence. In addition, the Commission infringed the applicants’ right to legal assistance, which is protected by the Charter of Fundamental Rights.

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