EN Official Journal of the European Union C 98/26

Action brought on 06 February 2012 — Western Digital and Western Digital Ireland v Commission

(Case T-60/12)

2012/C 98/42

Language of the case: English

Parties

Applicants: Western Digital Corp. (Dover, Delaware, United States) and Western Digital Ireland, Ltd (Grand Cayman, Cayman Islands) (represented by: F. González Díaz, lawyer, R. Patel, Solicitor and P. Stuart, Barrister)

Defendant: European Commission

Form of order sought

— Order the defendant to produce the questionnaires sent by it to third parties during the first phase and second phase of its investigation into the proposed acquisition by Seagate of the hard disk drive business of Samsung Electronics Co. Ltd;

— Order the defendant to grant access to its pre-notification and post-notification file in the Seagate/Samsung transaction, including, in particular, access to the non-confidential versions of any correspondence and records of contacts between Seagate, Samsung, and the Commission until the notification date, and any internal communications within the Commission — in both the Seagate/Samsung and Western Digital Ireland/Viviti Technologies cases — concerning the prioritization of the two transactions;

— Annul Articles 2 and 3 of the decision of the European Commission of 23 November 2011 in Case COMP/M.6203 — Western Digital Ireland/Viviti Technologies, relating to a proceeding under Council Regulation (EC) No 139/2004 (1) and, to the extent necessary, Article 1 of that decision; and

— Order the defendant to pay the costs of the present proceedings.

Pleas in law and main arguments

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

1. First plea in law, alleging that the contested decision is vitiated by the adoption and/or application of the so-called ‘priority rule’, as: — The Commission lacked the power to adopt a priority rule based on the date of the notification; — The priority principle is unlawful and violates the general principles of fairness and good administration; — The Commission breached the applicants’ legitimate expectation that the transaction would be assessed as a 5-to-4 merger; — The Commission, through disproportionate pre-notification requests for information, in breach of the principles of good administration, fairness, and non-discrimination, effectively deprived the applicants of the opportunity to be the first-notified transaction.

2. Second plea in law, alleging that the contested decision is vitiated by the fact that the applicants were precluded from exercising their right of defence, as: — The applicants were not afforded with an opportunity to rebut arguments, assertions, and assumptions that form part of the contested decision but did not form part of the Statement of Objections; — The applicants were not afforded with an opportunity to analyse relevant data and information available to the Commission.

3. Third plea in law, alleging that in the contested decision the defendant makes errors of law and relies on evidence that is factually inaccurate, unreliable, and not capable of substantiating the conclusions drawn from it, and is based on errors of law.

4. Fourth plea in law, alleging that the contested decision breaches a fundamental principle of EU law because it imposes disproportionate remedies.

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