OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 26 March 2026 (1)
Case C‑855/24 P
Crown Holdings, Inc.,
Crown Cork & Seal Deutschland Holdings GmbH
v
European Commission
( Appeal – Competition – Agreements, decisions and concerted practices – Metal packaging market – Initiation of an investigation procedure by the European Commission at the request of a national competition authority – Regulation (EC) No 1/2003 – Commission Notice on Cooperation within the Network of Competition Authorities – Principle of the protection of legitimate expectations )
I.      Introduction
1.        In the present appeal, Crown Holdings, Inc., and Crown Cork & Seal Deutschland Holdings GmbH (together, ‘Crown’) seek the setting aside of the judgment of the General Court of 2 October 2024, Crown Holdings and Crown Cork & Seal Deutschland v Commission (T‑587/22, EU:T:2024:661; ‘the judgment under appeal’), by which that court dismissed their action against Commission Decision C(2022)
4761 final of 12 July 2022 (2) relating to a proceeding under Article 101
TFEU
(Case AT.40522 – Metal packaging) (‘the decision at issue’). (3) In summary, the Commission, at the request of the Bundeskartellamt (Federal Cartel Office, Germany; ‘the National Competition Authority’) initiated proceedings against, inter alia, Crown. The National Competition Authority asked the Commission to initiate the proceedings because loopholes in the German law applicable at the time did not allow effective penalties to be imposed on the companies concerned, as it was not possible to identify all the companies responsible for the infringement owing to the corporate restructuring which had been carried out by the Crown companies. (4) At the end of the proceedings, the Commission found (5) a single and continuous infringement of Article 101
TFEU in the metal packaging sector in Germany from 11 March 2011 to 18 September 2014 and imposed a fine of EUR 7 670 000 on Crown, reduced by 50% pursuant to the Commission Notice on Immunity from fines and reduction of fines in cartel cases (6) and by 10% pursuant to the Commission Settlement Notice. (7)
2.        In the judgment under appeal, the General Court dismissed on the merits all the pleas put forward in support of the action brought against the decision at issue.
II.    Legal context
A.      Regulation No 1/2003
3.        In the present appeal, Article 11(3) and (6) of Council Regulation (EC) No 1/2003 (8) on the implementation of the rules on competition laid down in Articles 101 and 102
TFEU is relevant.
4.        Article 11 of that regulation, headed ‘Cooperation between the Commission and the competition authorities of the Member States’, provides as follows in paragraphs 3 and 6 thereof:
‘3.      The competition authorities of the Member States shall, when acting under [Articles 101 and 102
TFEU], inform the Commission in writing before or without delay after commencing the first formal investigative measure. This information may also be made available to the competition authorities of the other Member States.
…
6.      The initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply [Articles 101 and 102
TFEU]. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority’.
B.      Commission Notice on cooperation within the Network of Competition Authorities
5.        The operation of Regulation No 1/2003 is described in detail in the Commission Notice on cooperation within the Network of Competition Authorities (9) (‘the Cooperation Notice’).
Together, the Commission and the competition authorities of the Member States form a network of public authorities known as the ‘European Competition Network’ (‘ECN’) (10) In particular, with regard to the present appeal, paragraph 6 (11) of that notice states:
‘In most instances the authority that receives a complaint or starts an ex-officio procedure … will remain in charge of the case. Re-allocation of a case would only be envisaged at the outset of a procedure (see paragraph 18 below) where either that authority considered that it was not well placed to act or where other authorities also considered themselves well placed to act (see paragraphs 8 to 15 below)’.
6.        Paragraph 7
of the Cooperation Notice provides as follows:
‘Where re-allocation is found to be necessary for an effective protection of competition and of the Community interest, network members will endeavour to re-allocate cases to a single well placed competition authority as often as possible …. In any event, re-allocation should be a quick and efficient process and not hold up ongoing investigations’.
7.        Paragraph 16
of that notice is worded as follows:
‘In order to detect multiple procedures and to ensure that cases are dealt with by a well placed competition authority, the members of the network have to be informed at an early stage of the cases pending before the various competition authorities …. If a case is to be re-allocated, it is indeed in the best interest both of the network and of the undertakings concerned that the re-allocation takes place quickly’.
8.        Paragraph 18 of the Cooperation Notice
provides as follows:
‘Where case re-allocation issues arise, they should be resolved swiftly, normally within a period of two months, starting from the date of the first information sent to the network pursuant to Article 11 of [Regulation No 1/2003]. During this period, competition authorities will endeavour to reach an agreement on a possible re-allocation and, where relevant, on the modalities for parallel action’.
9.        Paragraph 19 of that notice provides as follows:
‘In general, the competition authority or authorities that is/are dealing with a case at the end of the re-allocation period should continue to deal with the case until the completion of the proceedings. Re-allocation of a case after the initial allocation period of two months should only occur where the facts known about the case change materially during the course of the proceedings’.
10.      Paragraph 31
thereof is worded as follows:
‘All network members will endeavour to make the allocation of cases a quick and efficient process. Given the fact that [Regulation No 1/2003] has created a system of parallel competences, the allocation of cases between members of the network constitutes a mere division of labour where some authorities abstain from acting. The allocation of cases therefore does not create individual rights for the companies involved in or affected by an infringement to have the case dealt with by a particular authority’.
11.      Section
3.2 of the Cooperation Notice, headed ‘The initiation of proceedings by the Commission under Article 11(6) of [Regulation No 1/2003]’, explains how the initiation of proceedings works. In particular, that section explains that two situations can arise, the second of which is where one or more national competition authorities have informed the network that they are acting on a given case. That second situation, which is relevant to the present appeal, is governed by paragraph 54 of the Cooperation Notice. In particular, that paragraph provides as follows:
‘The second situation is where one or more [national competition authorities] have informed the network pursuant to Article 11(3) of [Regulation No 1/2003] that they are acting on a given case. During the initial allocation period (indicative time period of two months, see paragraph 18 above), the Commission can initiate proceedings with the effects of Article 11(6) of [Regulation No 1/2003] after having consulted the authorities concerned. After the allocation phase, the Commission will in principle only apply Article 11(6) of [Regulation No 1/2003] if one of the following situations arises:
…
(d)      There is a need to adopt a Commission decision to develop Community competition policy in particular when a similar competition issue arises in several Member States or to ensure effective enforcement;
…’
III. The appeal
12.      As in the Silgan case, on which I delivered my Opinion on 12 March 2026, the present appeal centres around the functioning of the system of cooperation between the Commission and the competition authorities of the Member States, as outlined in the Cooperation Notice, in the specific circumstance in which re-allocation is requested after the initial allocation period. Although the arguments put forward by Silgan and Crown respectively share certain common factors, Crown also raises further arguments, in particular concerning the Commission’s exercise of its discretionary power and the principle of the protection of legitimate expectations.
13.      More specifically, Crown claims that the Court of Justice should set aside the judgment under appeal, annul the decision at issue, and order the Commission to pay the costs of the proceedings both at first instance and on appeal, or, in the alternative, refer the case back to the General Court for reassessment, and
reserve the costs relating to the appeal.
14.      The Commission, as well as the Federal Republic of Germany, which was the intervener at first instance, contends that the Court of Justice should dismiss the appeal and order Crown to pay the costs.
15.      In support of its appeal, Crown puts forward four grounds of appeal, all of which are contested by the Commission. The first ground – on which this Opinion will focus, as has been requested by the Court of Justice – alleges that the General Court misinterpreted the Cooperation Notice, in particular paragraphs 18 and 19 thereof. The second ground alleges that the General Court erred in law in its interpretation of the Commission’s duty to state reasons. The third ground alleges that the General Court erred in law in its interpretation of the principle of subsidiarity. Lastly, in the fourth ground, Crown alleges that the General Court failed to consider all the relevant legal points that Crown had put before it, thereby adversely impacting Crown’s rights of defence.
16.      With regard to the first ground of appeal, Crown’s line of argument is divided into two parts.
17.      The first part alleges that the General Court erred in law in its interpretation of paragraphs 18 and 19 of the Cooperation Notice. The second part alleges that the General Court erred in finding that the decision at issue was in line with the Cooperation Notice.
A.      The first part of the first ground of appeal
18.      Crown challenges paragraph 63 of the judgment under appeal, in which the General Court concluded that, even if the Commission were bound by the Cooperation Notice, that notice did not give rise to a legitimate expectation that the re-allocation had in any event to take place within the two-month period laid down thereby. Crown also challenges the General Court’s conclusion that the changes to the facts known about the case warranted its re-allocation from the National Competition Authority to the Commission. Furthermore, Crown maintains that, contrary to the General Court’s findings, it could legitimately have expected that the Commission would not have accepted a re-allocation of the case following an investigation by the National Competition Authority that had lasted more than three years. (12) In relation to the first part of the first ground of appeal, Crown puts forward two complaints.
19.      By the first complaint, Crown challenges paragraphs 47 and 48 of the judgment under appeal, in which the General Court held that the Cooperation Notice provided no precise assurance that the period for re-allocation would not exceed a period of two months, and that paragraph 18
of that notice was not relevant to the case at hand. It also submits that, according to the General Court, the two-month period referred to in paragraph 18
of the Cooperation Notice was not deemed to be mandatory.
20.      By the second complaint, Crown challenges paragraphs 49 and 51 of the judgment under appeal, in which the General Court rejected Crown’s interpretation of the second sentence of paragraph 19 of the Cooperation Notice, in particular the expression ‘facts known about the case’, considering it to be too restrictive. According to Crown, the expression ‘facts known about the case’ used in the second sentence of paragraph 19
of that notice does not include events that occurred during the proceedings but are unrelated to the competition infringement, such as corporate restructuring.
1.      The first complaint, alleging that the General Court misinterpreted paragraph 18 of the Cooperation Notice
(a)    Crown’s arguments
21.      With regard to the first complaint, Crown argues that paragraph 18 of the Cooperation Notice is relevant to the present case for two reasons. In the first place, Crown submits that, contrary to the view expressed by the General Court in paragraph 48 of the judgment under appeal, the National Competition Authority and the Commission had reached an agreement to resolve the issue of re-allocation. In the second place, Crown argues that paragraph 18 is the only paragraph of the Cooperation Notice that provides a concrete indication of the time period. According to Crown, that paragraph is therefore relevant when assessing whether a decision of the Commission to accept the re-allocation of a case is in line with the Cooperation Notice.
22.      It also submits that, contrary to the General Court’s findings, the Cooperation Notice provides sufficiently precise assurances to give rise to legitimate expectations on the part of the undertakings concerned. Therefore, Crown argues that paragraph 18
of that notice should be interpreted as meaning that case re-allocation issues should be resolved within a period of two months or within a period that is reasonably close to two months. In that respect, Crown argues that specific paragraphs of the Cooperation Notice – namely paragraphs 7, 16, 17, 18 and 31 – imply a requirement for the swift re-allocation of a case. Crown does not further expand on those arguments relating to the re-allocation procedure.
23.      In its reply, however, citing paragraph 72 of the Cooperation Notice – which states that the competition authorities of the Member States have undertaken to abide by the principles laid down in that notice – Crown argues that, contrary to the Commission’s assertions in its pleadings, the notice in question is binding on the Member States.
(b)    Analysis
24.      As is stated in points 17 and 18 of my Opinion in the Silgan case, the Cooperation Notice, an instrument of soft law, serves as a guide for the coordination of cooperation and the allocation of cases between the Commission and the competition authorities of the Member States.
25.      It is important to note that the Cooperation Notice differs from other soft-law instruments adopted in the field of competition (13) inasmuch as it is designed to regulate the functioning of the ECN and the allocation of cases. (14) Indeed, paragraph 1 of that notice states that the ECN is a forum for discussion and cooperation in the application and enforcement of competition policy. As has been held by the Court of Justice, it follows from this that the Cooperation Notice is not binding on the Member States. (15) The Court has, moreover, made it clear that the fact that the national competition authorities have formally undertaken to respect the principles set out in the Cooperation Notice, as stated in paragraph 72 thereof, does not change the legal status of that notice. (16) Crown’s argument that the Cooperation Notice is binding on the Member States must therefore be rejected.
26.      It is true that, according to the established case-law of the Court of Justice, through soft-law instruments the Commission imposes a limit on the exercise of its discretion and cannot depart from the content of the notice concerned without being in breach of the general principles of law, in particular the principles of equal treatment and the protection of legitimate expectations. (17) The right to rely on the principle of the protection of legitimate expectations presupposes, however, that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. (18)
27.      In the present appeal, Crown argues that the Cooperation Notice has given rise to a legitimate expectation regarding the speed with which a case will be re-allocated. In its reply, Crown makes it clear that the Cooperation Notice gave undertakings a legitimate expectation that the Commission would act in accordance with that notice.
28.      I note that, as is stated in paragraph 4 of the Cooperation Notice, consultations and exchanges within the ECN
are matters between public authorities and do not alter any rights or obligations arising for companies.
29.      It follows from this, in my view, that the requirement for ‘precise, unconditional and consistent assurances originating from authorised, reliable sources’ should be adapted, taking particular account of the context surrounding the soft-law instrument. (19) In the present case, as has been discussed in point 25 of this Opinion, the Cooperation Notice is intended to regulate the cooperation mechanism within the ECN. However, I note that it does not appear from the judgment under appeal that Crown had demonstrated that it had been provided with an assurance that the deadline for re-allocation would be two months.
30.      Crown, on the other hand, argues that paragraphs 7, 16, 17, 18 and 31 of the Cooperation Notice imply that there is a need to ensure that re-allocation takes place swiftly and efficiently. In support of its line of argument, Crown refers to the judgment of the General Court of
9 February 2022, Sped-Pro v Commission (T‑791/19, EU:T:2022:67).
31.      I consider that that complaint is unfounded. In paragraph 47 of the judgment under appeal, the General Court correctly concluded that the Cooperation Notice provided no precise assurance that the period for re-allocation would not exceed two months. Indeed, in my view, paragraph 7 of the Cooperation Notice must be read in conjunction with paragraph 6 of that notice, which, by referring to paragraph 18 thereof, specifically refers to the possibility of re-allocating the case only at the outset of a procedure. Paragraphs 16 and 17 of the Cooperation Notice govern the arrangements for cooperation among the members of the ECN. Paragraph 31 of that notice, on the other hand, refers to the allocation of cases, stipulating that this must take place quickly and efficiently and that it constitutes ‘a mere division of labour’ among the members of the ECN.
32.      As regards
paragraph 18 of the Cooperation Notice, I note that the General Court correctly held in paragraph 48 of the judgment under appeal that the use of the expression ‘normally’ in that paragraph of that notice indicated that the two-month period was not mandatory and that, in any event, paragraph 18 of the Cooperation Notice was not relevant to the case at hand. In this regard, I refer to the observations set out in point 43 of my Opinion in the Silgan case.
33.      As regards the judgment of the General Court of 9 February 2022, Sped-Pro v Commission (T‑791/19, EU:T:2022:67), referring to that judgment is, in my view, irrelevant in the present case. That case-law concerned
a situation in which the Commission had rejected a complaint under
Article 7(2) of Regulation (EC)
No 773/2004, (20) on the grounds that it considered the national competition authority to be best placed to examine the complaint. Having noted, inter alia, that approximately two years and nine months had elapsed between the lodging of the complaint and the adoption of the decision contested in that case, the General Court found that the reasoning set out in that decision was perfunctory. Furthermore, the General Court held that it was not necessary to make a final decision on the question of whether the Commission had failed to fulfil its obligation to handle the complaint within a reasonable time. Instead, it focused on whether the alleged breach of the reasonable time limit had adversely affected the rights of defence of the undertaking concerned. (21) It follows from this that that case-law has no bearing on the speed with which cases referred to in the Cooperation Notice are re-allocated and does not allow for the conclusion that that notice sets a strict deadline.
34.      Lastly, as regards Crown’s line of argument that, on the basis of the Cooperation Notice, Crown could legitimately have expected the Commission not to accept the re-allocation of the case after the National Competition Authority’s investigation had lasted more than three years, it is sufficient to note that paragraph 31 of the Cooperation Notice states that ‘the allocation of cases …
does not create individual rights for the companies involved in or affected by an infringement to have the case dealt with by a particular authority’. (22)
35.      It follows from this that the first complaint in the first part of the first ground of appeal must, in my view, be rejected.
2.      The second complaint, alleging that the General Court misinterpreted paragraph 19 of the Cooperation Notice
(a)    Crown’s arguments
36.      With regard to the second complaint, alleging that the General Court misinterpreted paragraph 19 of the Cooperation Notice, Crown challenges paragraphs 49 and 51 of the judgment under appeal, in which the General Court rejected Crown’s proposed interpretation that the expression ‘facts known about the case’ should be understood solely with reference to infringements of competition law provisions and not to events occurring during the proceedings, such as corporate restructuring. According to the General Court, however, that expression must be interpreted as covering any relevant fact that comes to light during the proceedings. (23)
37.      According to Crown, the General Court’s interpretation would allow re-allocation on the basis of paragraph 19 of the Cooperation Notice in virtually any case. Instead, the General Court should have carried out a historical, teleological and systemic interpretation of that paragraph of that notice, in addition to a contextual one.
38.      With regard to the contextual interpretation, Crown challenges paragraph 51 of the judgment under appeal, in which the General Court notes that it is clear from paragraph 54 of the Cooperation Notice that the Commission may initiate proceedings under Article 11(6) of Regulation No 1/2003 on various grounds that go beyond the facts which are relevant for assessing whether an infringement of competition rules has taken place. Crown argues that the General Court’s remarks suggest a broad interpretation of paragraph 19 of the Cooperation Notice. That paragraph of that notice, however, relates to developments concerning the facts of the case being investigated by a national competition authority, while paragraph 54
thereof lists situations where re-allocation of a case to the Commission is warranted for policy reasons. Consequently, Crown submits that the situations set out in paragraph 54
of that notice need to be viewed separately from changes in the facts known about the case referred to in paragraph 19 thereof.
39.      With regard to the historical interpretation, Crown argues that it follows from the preparatory work on Regulation No 1/2003, in particular Article 11(6) thereof, that paragraph 19
of the Cooperation Notice was intended to apply only where the re-allocation is based on facts that were initially shared with the ECN pursuant to Article 11 of Regulation No 1/2003.
40.      Crown further argues that the Cooperation Notice should be interpreted in the light of the fundamental principles of the European Union, the principle of legal certainty and the principle of procedural autonomy. In particular, it submits that an interpretation of paragraph 19
of that notice whereby national competition authorities and the Commission may agree to re-allocate cases where national rules are inadequate to ensure that effective penalties will be imposed is in breach of those principles.
(b)    Analysis
41.      With regard to Crown’s line of argument whereby a literal interpretation implies that a material change in the facts known about the case referred to in paragraph 19
of the Cooperation Notice relates solely to infringements of competition law and not also to events occurring during the proceedings, such as corporate restructuring, I refer to the observations set out in point 36 of my Opinion in the Silgan case. In summary, I considered that corporate restructuring could well fall within the definition of a material change in the facts known about the case. Indeed, I take the view that, although it should be regarded as a possible means of improving a company’s commercial and strategic position in the market, restructuring entails substantial changes to the undertakings that committed the infringements.
42.      With regard to the arguments concerning the contextual interpretation, I am not convinced by the line of argument that paragraph 54
of the Cooperation Notice derogates from paragraph 19
thereof. In this regard, I refer to the observations set out regarding, respectively, paragraphs 19 and 54 of that notice in points 27 and 45 of my Opinion in the Silgan case. In the context of this Opinion, I will confine my analysis to noting that the fact that paragraph 19
of the Cooperation Notice refers to a situation where, during the proceedings – and in any event after the initial allocation phase – the known facts of the case change materially does not preclude the application of paragraph 54 thereof. In other words, where a material change in the facts of a particular case is such as to undermine the effective application of EU competition law, (24) paragraph 54
of the Cooperation Notice would apply. In that respect, I note that Crown argues that the cases listed in paragraph 54 of that notice do not include a situation where the Commission could initiate proceedings under Article 11(6) of Regulation No 1/2003 to remedy legislative gaps in the applicable national law. In my view, that line of argument is unfounded. In this regard, I refer to the observations set out in points 30 to 32 of my Opinion in the Silgan case.
43.      With regard to the line of argument concerning the historical interpretation, I note that that line of argument does not demonstrate how it can be inferred from the concerns raised by the Member States regarding Article 11(6) of Regulation No 1/2003 that the objective of paragraph 19
of the Cooperation Notice is to allow re-allocation only in the event of a change in the facts initially shared with the members of the ECN, within the meaning of Article 11 of Regulation No 1/2003.
44.      As regards the line of argument concerning the teleological interpretation, Crown argues that the General Court’s interpretation is not supported by a teleological interpretation. In that regard, Crown submits that the General Court’s interpretation is at odds with the objectives of the Cooperation Notice and Regulation No 1/2003, namely to ensure the quick and efficient allocation of cases across the ECN. I note that the line of argument put forward by Crown does not demonstrate how the General Court’s interpretation conflicts with the objective of both the Cooperation Notice and Regulation No 1/2003. In any event, that line of argument is also, in my view, unfounded. Indeed, as is stated in recital 8 of Regulation No 1/2003, the objective of that regulation is ‘to ensure the effective enforcement of the [Union’s] competition rules and the proper functioning of the cooperation mechanisms’.
45.      With regard to the complaints concerning breaches of the principles of legal certainty and procedural autonomy, as well as the fundamental principles of the European Union, it should first of all be noted that those complaints are unfounded. In addition, I note, as the Commission has also pointed out in its pleadings, that, in its appeal, Crown does not in any way identify the contested aspects of the judgment under appeal; nor does it argue that the judgment under appeal is in breach of those principles. In its arguments, Crown merely submits that the Cooperation Notice should be interpreted in accordance with those principles. Incidentally, the judgment under appeal contains no mention whatsoever of any breach of those principles.
46.      In particular, the arguments on which Crown bases its objections regarding the principle of legal certainty are unfounded. Crown refers to the preparatory work on Regulation No 1/2003 and to recital 38 of that regulation – which states that legal certainty contributes to the promotion of innovation and investment – to argue that paragraph 19 of the Cooperation Notice should be interpreted narrowly.
47.      I note that recital 38 of Regulation No 1/2003 expressly refers to circumstances where there is uncertainty because of novel or unresolved questions concerning the application of the provisions of competition law. (25) In such cases, as is stated in that recital, undertakings may seek informal guidance from the Commission. However, that recital is not relevant to the present appeal.
48.      The arguments concerning the breach of the principle of procedural autonomy are manifestly irrelevant in this context, if only because the present appeal does not concern procedural autonomy. The argument that, prior to the adoption of Directive 2019/1 (which confers more effective enforcement powers on the competition authorities of the Member States), (26) the rules governing the application of Article 101
TFEU were not harmonised is also manifestly irrelevant in the context of the present appeal. Crown argues that, at the time the case was re-allocated, the question of parent company and legal successor liability was not a question of EU law, and it was therefore for the German domestic system to lay down the relevant procedure. In its reply, Crown makes it clear that the Commission, in initiating the proceedings
in order to remedy legislative loopholes
in the German law applicable at the time, exceeded the limits of its discretion.
49.      I consider that that argument is manifestly unfounded, as it conflicts not only with the cooperation mechanism established by Regulation No 1/2003 (27) but also with the objective of that regulation, namely to ensure the effective application of EU competition law. Incidentally, by way of analogy, in its judgment of 2 October 2024, Silgan Holdings and Others v Commission (T‑589/22, EU:T:2024:662), the General Court held that the Commission was well placed to ensure the pursuit of the objective of Regulation No 1/2003. (28)
50.      Moreover, in its arguments, Crown makes reference to paragraph 67 (29) of the judgment of the General Court of 9 February 2022, Sped-Pro v Commission (T‑791/19, EU:T:2022:67). That reference is based, in my view, on a misinterpretation. In that paragraph, the General Court emphasised the need for Member States to ensure effective judicial protection and the fact that it is not for the Commission to make up for any shortcomings in judicial protection at national level by opening an investigation. That case-law is not relevant in a situation such as that at issue in the present appeal, where, in the first place, legislative loopholes in the area of penalties meant that it was not possible to impose effective penalties on the undertakings responsible for the infringements and, in the second place, the Commission, at the request of the National Competition Authority, decided to initiate proceedings.
51.      As regards the arguments that the Cooperation Notice should be interpreted in accordance with the fundamental principles of the European Union, I consider that those arguments are based on a misinterpretation of the judgment under appeal. Crown argues that the General Court’s interpretation of paragraph 19
of that notice would effectively allow the Commission to circumvent the sovereign legislative decision of a Member State if the Commission and the national competition authority consider that the national rules hinder the enforcement of competition law provisions. As has been noted above, it should be pointed out that, in the context of the present appeal, the loopholes present in the German legislative system at the material
time would have made it impossible to effectively punish the undertakings responsible for the infringement following the corporate restructuring undertaken. (30) This would undermine the objective of ensuring the effective application of EU competition law.
52.      It follows from this that the second complaint in the first part of the first ground of appeal must, in my view, be rejected.
B.      The second part of the first ground of appeal
1.      Crown’s arguments
53.      In the second part of the first ground of appeal, Crown submits that the General Court erred in law in the judgment under appeal, in holding that the decision at issue was in line with the Cooperation Notice. It challenges paragraph 61 of the judgment under appeal, in which the General Court held that Crown cannot blame the Commission for the fact that the National Competition Authority’s investigation had lasted some time before that authority finally requested that the Commission act on the case in question. Furthermore, Crown argues that, pursuant to paragraph 17 of the Cooperation Notice, the National Competition Authority was required to update the Commission promptly of any relevant change in the facts known about the case. Consequently, according to Crown, when the Commission received the request to re-allocate the case, having already been informed of material changes, it should have assessed whether to accept the re-allocation. In any event, Crown maintains that the facts of the case have not developed in such a way as to justify a re-allocation a posteriori, and that the two-month deadline was not met.
54.      Furthermore, Crown refers to suspicions that the collusive arrangement could also have involved other Member States. As the Federal Republic of Germany stated in its pleadings, the investigation conducted by the National Competition Authority had revealed signs of breaches of antitrust law in several Member States. However, according to Crown, such suspicions cannot serve as a justification for requesting
a belated re-allocation of the case to the Commission.
55.      In its pleadings, the Commission argues that it cannot be blamed for not having initiated the proceedings before receiving the request from the National Competition Authority in June 2017. Furthermore, according to the Commission, it is unclear how the fact that the National Competition Authority was aware of certain facts from the outset of the investigation could have been relevant to the Commission’s decision to initiate proceedings at an earlier stage.
2.      Analysis
56.      It should first of all be noted that, in the second part of the first ground of appeal, Crown refers – in my view, somewhat ambiguously – both to the protracted nature of the investigation by the National Competition Authority and to the belated initiation of the Commission’s proceedings.
57.      With regard to the line of argument concerning paragraph 17 of the Cooperation Notice, it is not clear how the fact that the Commission might already have been aware of the progress of the proceedings could have affected the speed with which the case was re-allocated to the Commission. As has been stated in point 50 of this Opinion, the legislative loopholes present in national law at the material time made it impossible to ensure the effective application of EU competition law.
58.      The argument regarding suspicions of a collusive arrangement allegedly involving other Member States is also not convincing. It is unclear, indeed, how this would have affected either the length of the investigation by the National Competition Authority or the date on which the Commission initiated the proceedings.
59.      Therefore, in my view, the second part of the first ground of appeal is unfounded and must be rejected.
IV.    Conclusion
60.      In the light of the foregoing considerations, I propose that the Court of Justice reject the first ground of appeal.
1      Original language: Italian.
2      Commission Decision C(2022)
4761 final of 12 July 2022, relating to Case AT.40522, can be viewed at: https://ec.europa.eu/competition/a1ntitrust/cases1/202307/AT_40522_8986595_2868_7.pdf.
3      For a more detailed account of the facts of this case, I refer to paragraphs 2 to 11 of the judgment under appeal.
4      The German legislature subsequently closed those loopholes with the introduction of Paragraph 81
via the Neuntes Gesetz zur Änderung des Gesetz gegen Wettbewerbsbeschränkungen (ninth amendment to the Law against restrictions on competition), Bundesgesetzblatt Jahrgang 2017, Part I,
No 33, published in Bonn on 8 June 2017.
5      In the same decision, the Commission found that the infringement had also been committed by Silgan Holdings, Inc., Silgan Holdings Austria GmbH, Silgan International Holdings BV, Silgan Metal Packaging Distribution GmbH and Silgan White Cap Manufacturing GmbH (together, ‘Silgan’), and imposed a fine on those companies as well. Silgan also brought an action for annulment against the decision at issue before the General Court. However, that action was dismissed by judgment of 2 October 2024, Silgan Holdings and Others v Commission (T‑589/22, EU:T:2024:662). Silgan’s appeal in Case C‑845/24 P, Silgan Holdings and Others v Commission (‘the Silgan case’), on which I delivered my Opinion on 12 March 2026, and which is seeking the setting aside of the judgment of the General Court in Case T‑589/22, is currently pending before the Court of Justice. In this Opinion, I will confine myself to the arguments raised by Crown alone.
6      OJ 2006 C 298, p. 17.
7      Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1)
8      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), as last amended by Council Regulation (EC) No 487/2009 of 25 May 2009 (OJ 2009 L 148, p. 1).
9      See paragraph 3 of the Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43).
10      See paragraph 1 of the Cooperation Notice.
11      For the sake of completeness, I note that the various language versions of paragraph 6 of the Cooperation Notice all refer to paragraphs 8 to 15 of that notice, with the exception of the Italian language version.
12      I note that Crown has not developed this argument in the first ground of appeal. Instead, Crown’s arguments focus on the fact that the Cooperation Notice allegedly gave rise to a legitimate expectation that the re-allocation of the case was required to take place within two months.
13      For example, the Commission Notice on Immunity from fines and reduction of fines in cartel cases is, by contrast, addressed to economic operators. However, in the judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to
C‑208/02 P and C‑213/02 P, EU:C:2005:408), the Court of Justice confirmed that economic operators cannot found a legitimate expectation on a particular practice, given that, in the field of competition law, the Commission ‘has a discretion which allows it to raise the general level of fines at any time, within the limits set out in [EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition: Series I Volume 1959-1962, p. 87)], if that is necessary to ensure the implementation of the [Union’s] competition policy’ (paragraph 191).
14      See, in particular, paragraphs 1 and 3 of the Cooperation Notice.
15      See judgment of 20 January 2016, DHL Express (Italy) and DHL Global Forwarding (Italy) (C‑428/14, EU:C:2016:27, paragraph 33).
16      Ibid., paragraph 43.
17      See, by analogy, judgment of 13 December 2012, Expedia (C‑226/11, EU:C:2012:795, paragraph 28).
18      See judgments of 12 January 2017, Timab Industries and CFPR v Commission (C‑411/15 P, EU:C:2017:11, paragraph 134), and of 9 October 2025, On Air Media Professionals and Different Media (C‑416/24 and C‑417/24, EU:C:2025:765, paragraph 60).
19      In that regard, I note that, in its pleadings, the Commission contends that paragraphs 42 and 43 of the judgment under appeal are vitiated by an error of law. According to the Commission, the General Court held that the Cooperation Notice was binding on the Commission with regard to the applicants and that paragraphs 18 and 19 of that notice did not create legitimate expectations for them. The Commission is therefore requesting that the Court of Justice replace the legal reasoning of
paragraphs 42 and 43 of the judgment under appeal. However, in light of the case-law referred to and the considerations set out in points 24 to 29 of this Opinion, I am of the view that the Commission’s request should be rejected.
20      Commission Regulation of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18).
21      Paragraph 29 of the judgment concerned.
22      See judgment of 17 December 2014, Si.mobil v Commission (T‑201/11, EU:T:2014:1096, paragraph 39). See also, to that effect, judgment of 20 April 2023, Amazon.com and Others v Commission (C‑815/21 P, EU:C:2023:308, paragraph 35).
23      Paragraph 51 of the judgment under appeal.
24      See the second option under point (d) of paragraph 54 of the Cooperation Notice.
25      Recital 38 of Regulation No 1/2003 is worded as follows: ‘Legal certainty for undertakings operating under the Community competition rules contributes to the promotion of innovation and investment. Where cases give rise to genuine uncertainty because they present novel or unresolved questions for the application of these rules, individual undertakings may wish to seek informal guidance from the Commission. This Regulation is without prejudice to the ability of the Commission to issue such informal guidance’.
26      Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).
27      See judgment of 11 June 2009, X BV (C‑429/07, EU:C:2009:359), in which the Court of Justice held that: ‘in order to ensure the coherent application of the competition rules in the Member States, a cooperation mechanism between the Commission, the national competition authorities and the courts of the Member States was set up in Chapter
IV of Regulation No 1/2003’ (paragraph 20).
28      See paragraph 60 of that judgment.
29      I note that footnote 50
to the appeal refers to paragraph 27 of the judgment in question. However, the correct reference is paragraph 67.
30      See judgment of 14 June 2011, Pfleiderer (C‑360/09, EU:C:2011:389), in which the Court of Justice held that Member States ‘must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101
TFEU and 102
TFEU’ (paragraph 24). See also judgment of 30 January 2025, Caronte & Tourist (C‑511/23, EU:C:2025:42, paragraph 62).