Action brought on 11 September 2018 — ASL Aviation Holdings and ASL Airlines (Ireland)/Commission

(Case T-540/18)

(2018/C 399/64)

Language of the case: English

Parties

Applicants: ASL Aviation Holdings DAC (Swords, Ireland) and ASL Airlines (Ireland) Ltd (Swords) (represented by: N. Travers, Senior Counsel, H. Kelly, K. McKenna and R. Scanlan, Solicitors)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

— hold the defendant liable on the basis of Article 268 TFEU and the second paragraph of Article 340 TFEU for the damages incurred by the applicants in the sum of approximately EUR 263,6 million, or such other sum as the Court may rule to be appropriate, arising from the unlawfulness of Commission Decision C(2013) 431, Case COMP/M.6570 UPS/TNT Express, of 30 January 2013 prohibiting a concentration between UPS and TNT Express NV and consequently the Commission’s breach of ASL’s entitlement to sound administration;

— hold the defendant liable to pay default interest, starting from the date of delivery of the Court’s judgment determining this action until full payment, at the rate set by the European Central Bank for its main refinancing operations, increased by two percentage points, on the sum of EUR 263,6 million or on such other sum as the Court may rule to be appropriate; and

— order the defendant to pay the costs of these proceedings.

Pleas in law and main arguments

The applicants seek compensation for the loss allegedly suffered as a consequence of Commission Decision C(2013) 431, Case COMP/M.6570 UPS/TNT Express (‘the Decision’) which was annulled by the judgment of 7 March 2017, United Parcel Service v Commission, T-194/13, EU:T:2017:144.

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

1. First plea in law, alleging that the Decision is tainted with serious breaches of rules of law that are intended to confer protection on individuals, including the applicants, as a direct consequence of which the applicants were precluded from realising the benefits associated with agreements they had entered into in November 2012.

2. Second plea in law, alleging that the defendant’s conduct in significantly failing to follow proper procedures in its merger-control review assessment of the notified concentration, which resulted in the annulment of the Decision, so departed from an approach commensurate with the applicants’ rights to good administration and due diligence by the defendant in the exercise of that assessment, as guaranteed by Article 18(3) of Council Regulation (EC) No 139/2004 (1), Article 41 of the Charter of Fundamental Rights of the European Union and by the general principles of EU law, that it breached rules of law that are intended to confer protection on all individuals directly affected by the Decision, including the applicants.

3. Third plea in law, alleging that the Decision is further tainted with manifest and serious defects affecting the defendant’s assessment therein of the notified concentration, as claimed by UPS in the action for non-contractual liability brought by it against the Commission in Case T-834/17 — upon which, in the interest of the sound and efficient administration of justice, the applicants rely, insofar as is necessary to sustain their damages claim — with regard to: the price concentration analysis, the efficiencies analysis, the assessment of FedEx’s competitiveness and the assessment of the closeness of competition made by the defendant in the Decision.

4. Fourth plea in law, alleging that the applicants are entitled to damages for the non-contractual liability of the defendant resulting from its having, in unlawfully making the Decision and preventing the notified concentration, infringed the applicants’ freedom to conduct a business and their right to property as protected by Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, as well as by the general principles of EU law.

5. Fifth plea in law, alleging that these breaches in turn caused the applicants’ losses, because, had they not occurred, the applicants would have been in a position to realise the benefits of the agreements they had entered into in November 2012, with the result that the applicants should now be put, by way of reparatory compensation, in the position they would have been in but for the unlawfulness of the Decision, and this action is the sole means of ensuring that they can be so compensated.

(1) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).