Provisional text
JUDGMENT OF THE COURT (Third Chamber)
1 October 2026 ( * )
[para_4]( Appeal – Competition – Agreements, decisions and concerted practices – Regulation (EC) No 1/2003 – Article 11(6) – European Commission initiating proceedings in a case on which a national competition authority is already acting – Request from that national authority for the Commission to relieve it of competence – Principle of subsidiarity – Article 41 of the Charter of Fundamental Rights of the European Union – Principle of good administration – Reasonable time period for dealing with a case – Commission Notice on Cooperation within the Network of Competition Authorities – That institution itself deciding to limit its discretion – Obligation to state reasons )
[para_5]In Case C‑845/24 P,
[para_6]APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 December 2024,
[para_7]Silgan Holdings Inc., established in Stamford, Connecticut (United States),
[para_8]Silgan Holdings Austria GmbH, established in Vienna (Austria),
[para_9]Silgan International Holdings BV, established in Maarsbergen (Netherlands),
[para_10]Silgan Metal Packaging Distribution GmbH, established in Meissen (Germany),
[para_11]Silgan White Cap Manufacturing GmbH, established in Hannover (Germany),
[para_12]represented by R. Grafunder, Y.-K. Gürer, D. Seeliger, E. Venot and H. Wollmann, Rechtsanwälte,
[para_13]appellants,
[para_14]the other parties to the proceedings being:
[para_15]European Commission, represented by A. Keidel, G. Meesen and L. Wildpanner, acting as Agents,
[para_16]defendant at first instance,
[para_17]Federal Republic of Germany, represented by J. Möller and R. Kanitz, acting as Agents,
[para_18]Council of the European Union, represented by D. Bringuier and N. Brzezinski, acting as Agents,
[para_19]interveners at first instance,
[para_20]THE COURT (Third Chamber),
[para_21]composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu-Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,
[para_22]Advocate General: A. Biondi,
[para_23]Registrar: A. Calot Escobar,
[para_24]having regard to the written procedure,
[para_25]after hearing the Opinion of the Advocate General at the sitting on 12 March 2026,
[para_26]gives the following
Judgment
[para_28]1 By their appeal, the appellants seek the annulment of the judgment of the General Court of the European Union of 2 October 2024, Silgan Holdings and Others v Commission , T‑589/22, EU:T:2024:662 (‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision C(2022) 4761 final of 12 July 2022 relating to a proceeding under Article 101 TFEU (Case AT.40522 – Metal packaging) (‘the decision at issue’), in so far as that decision concerns them.
Legal context
The EU Treaty
2 Article 5(3) TEU provides:
[para_32]‘Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the [European] Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
[para_33]The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol [(No 2)] on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.’
The Charter
[para_35]3 Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Right to good administration’, provides, in paragraph 1 thereof, that:
[para_36]‘Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.’
Regulation (EC) No 1 /2003
[para_38]4 Recitals 17 and 34 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) state that:
[para_39]‘(17) If the competition rules are to be applied consistently and, at the same time, the network is to be managed in the best possible way, it is essential to retain the rule that the competition authorities of the Member States are automatically relieved of their competence if the [European] Commission initiates its own proceedings. Where a competition authority of a Member State is already acting on a case and the Commission intends to initiate proceedings, it should endeavour to do so as soon as possible. Before initiating proceedings, the Commission should consult the national authority concerned.
[para_40]…
[para_41](34) The principles laid down in Articles [101 and 102 TFEU] … have given a central role to the Community bodies. This central role should be retained, whilst associating the Member States more closely with the application of the Community competition rules. In accordance with the principles of subsidiarity and proportionality as set out in Article 5 [TEU], this Regulation does not go beyond what is necessary in order to achieve its objective, which is to allow the Community competition rules to be applied effectively.’
[para_42]5 Article 7 of that regulation, entitled ‘Finding and termination of an infringement’, falls within Chapter III of that regulation, entitled ‘Commission Decisions’. That article 7 provides, in paragraph 1 thereof:
[para_43]‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101 or of Article 102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. …’
[para_44]6 Article 11 of that regulation, entitled ‘Cooperation between the Commission and the competition authorities of the Member States’, falls within Chapter IV thereof, entitled ‘Cooperation’. That article 11 provides:
[para_45]‘1. The Commission and the competition authorities of the Member States shall apply the Community competition rules in close cooperation.
[para_46]…
[para_47]3. The competition authorities of the Member States shall, when acting under Article [101 or Article 102 TFEU], inform the Commission in writing before or without delay after commencing the first formal investigative measure. …
[para_48]…
[para_49]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.’
The cooperation notice
[para_51]7 The Commission Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p.43; ‘the cooperation notice’) states:
[para_52]‘…
[para_53]7. 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.
[para_54]…
[para_55]16. 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.
[para_56]…
[para_57]18. 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.
[para_58]19. 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.
[para_59]…
[para_60]31. 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.
[para_61]…
[para_62]52. The initiation of proceedings by the Commission is a formal act by which the Commission indicates its intention to adopt a decision under Chapter III of [Regulation No 1/2003]. …
[para_63]53. Two situations can arise. First, where the Commission is the first competition authority to initiate proceedings in a case for the adoption of a decision under [Regulation No 1/2003], national competition authorities may no longer deal with the case. Article 11(6) of [Regulation No 1/2003] provides that once the Commission has initiated proceedings, the NCAs can no longer start their own procedure with a view to applying Articles [101 and 102 TFEU] to the same agreement(s) or practice(s) by the same undertaking(s) on the same relevant geographic and product market.
[para_64]54. The second situation is where one or more NCAs 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:
(a) Network members envisage conflicting decisions in the same case[;]
[para_66](b) Network members envisage a decision which is obviously in conflict with consolidated case-law; the standards defined in the [judgments] of the Community courts and in previous decisions and regulations of the Commission should serve as a yardstick; concerning the assessment of the facts (e.g. market definition), only a significant divergence will trigger an intervention of the Commission;
(c) Network member(s) is (are) unduly drawing out proceedings in the case;
[para_68](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;
[para_69](e) The NCA(s) concerned do not object.
[para_70]…’
The background to the dispute and the decision at issue
[para_72]8 The background to the dispute, as described, in essence, in paragraphs 2 to 14 of the judgment under appeal, may be summarised as set out below.
[para_73]9 The appellants are part of the Silgan group, which is active in the metal packaging sector.
[para_74]10 On 21 May 2015, inspectors from the Bundeskartellamt (Federal Cartel Office, Germany) searched the premises of a number of companies in that group.
[para_75]11 Following a request of 14 June 2017 by the Federal Cartel Office to investigate the present case, the Commission adopted, on 19 April 2018, Decision C(2018) 2466 final on the initiation of proceedings in Case AT. 40522 – Pandora (‘the decision to initiate proceedings’). Those proceedings were brought against the appellants and against Crown Holdings Inc. and Crown Cork & Seal Deutschland Holdings GmbH, companies which are part of the Crown Group, which is also active in the metal packaging sector.
[para_76]12 By application lodged at the Registry of the General Court on 4 July 2018, two companies in the Silgan group brought an action against the decision to initiate proceedings.
[para_77]13 By order of 15 March 2019, Silgan Closures and Silgan Holdings v Commission (T‑410/18, EU:T:2019:166), the General Court dismissed that action as being inadmissible, on the ground that the decision to initiate proceedings constituted a preparatory act. By order of the Court of Justice of 29 January 2020, Silgan Closures and Silgan Holdings v Commission (C‑418/19 P, EU:C:2020:43), the appeal against that order of the General Court was dismissed.
[para_78]14 By decision of 1 October 2021, the proceedings were closed in respect of all the territories of the European Economic Area (EEA), with the exception of Germany.
[para_79]15 Both the Crown group companies and the Silgan group companies acknowledged the existence of an infringement in Germany and indicated the maximum amount of the fine they expected to be imposed on them by the Commission and which they would accept in the framework of a settlement procedure.
[para_80]16 On 12 July 2022 the Commission adopted the decision at issue. It found that companies in the Crown and Silgan groups had participated in a single and continuous infringement of Article 101 TFEU in the sector of metal packaging in Germany from 11 March 2011 to 18 September 2014, thereby affecting competition between those two groups on a substantial part of the internal market, and imposed on the appellants, jointly and severally, a fine of EUR 23 852 000.
The procedure before the General Court and the judgment under appeal
[para_82]17 By their action before the General Court, the appellants sought the annulment of the decision at issue in so far as it concerned them and sought to have the Commission be ordered to pay the costs.
[para_83]18 They put forward three pleas in law in support of that action. The first plea alleged infringement of the principle of subsidiarity, set out in Article 5(3) TEU, the second, misuse of powers, and the third, infringement of the right to good administration, enshrined in Article 41 of the Charter.
[para_84]19 In the context of the first plea, the appellants submitted, in the alternative, that, if it were to be held that the Commission could apply Article 11(6) of Regulation No 1/2003 without being bound by an obligation to comply with the principle of subsidiarity, it would have to be inferred that Article 11(6) is itself unlawful in so far as it is incompatible with that principle.
[para_85]20 The Commission requested the General Court to dismiss the action and to order the appellants to pay the costs. The Commission also brought a counterclaim seeking to have the amount of the fine set at a higher level, of up to EUR 26 503 000.
[para_86]21 The Federal Republic of Germany and the Council of the European Union intervened in support of the forms of order sought by the Commission.
[para_87]22 By the judgment under appeal, the General Court dismissed both the appellants’ action and the Commission’s counterclaim. It ordered the appellants to bear their own costs and to pay 90% of the costs incurred by the Commission, the latter therefore bearing 10% of its own costs, while the Federal Republic of Germany and the Council were to bear their own costs.
Forms of order sought by the parties
23 The appellants claim that the Court should:
[para_90]– set aside the judgment under appeal in so far as their action was dismissed;
[para_91]– annul the decision at issue; and
[para_92]– order the Commission to pay the costs incurred in the proceedings before the General Court and the Court of Justice.
24 The Commission and the Federal Republic of Germany contend that the Court should:
[para_94]– dismiss the appeal and
[para_95]– order the appellants to pay the costs.
[para_96]25 The Council contends that the appeal should be dismissed in so far as it calls into question the General Court’s rejection of the plea of illegality in respect of Article 11(6) of Regulation No 1/2003 raised by the appellants.
The appeal
[para_98]26 The appellants put forward five grounds in support of their appeal. The General Court misinterpreted and misapplied the principle of subsidiarity (first ground of appeal), the prohibition of misuse of powers (second ground of appeal), the principle of proportionality (third ground of appeal), the principle that the administration is bound by its own decisions (fourth ground of appeal) and the Commission’s obligation to state reasons (fifth ground of appeal).
[para_99]27 It is appropriate, in the first place, to examine the fourth ground of appeal.
[para_100]The fourth ground of appeal: infringement of the principle that the administration is bound by its own decisions
Arguments of the parties
[para_102]28 The appellants maintain that, in finding, in paragraph 105 of the judgment under appeal, that they have not established that the Commission departed from the cooperation notice without a legitimate reason, the General Court misinterpreted and misapplied the principle that the administration is bound by its own decisions.
[para_103]29 They state that, under that principle, the Commission must follow rules of conduct which it has imposed on itself. The cooperation notice therefore has binding effect on the Commission. That notice contains rules of conduct, which have not been complied with in the present case, concerning the re-allocation of cases within the network.
[para_104]30 Accordingly, it follows from paragraph 19 of that notice that, after the two-month period laid down in paragraph 18 thereof has expired, Article 11(6) of Regulation No 1/2003 may be applied only where ‘the facts known about the case change materially during the course of the proceedings’. In the present case, it appears that the Commission accepted the re-allocation requested by the Federal Cartel Office on the basis of the information, sent by the Federal Cartel Office after that two-month period had expired, regarding the restructuring of the Silgan group carried out during the proceedings before that national authority, as that restructuring was, according to information also forwarded by that authority, liable to prevent that authority from imposing an effective penalty, because of a loophole in the German legislation. According to the appellants, that restructuring cannot justify the application of Article 11(6) of Regulation No 1/2003, since it took place after the infringement had ceased and therefore did not constitute a change in ‘the facts known about the case’.
[para_105]31 Contrary to what is stated in paragraphs 59 and 60 of the judgment under appeal, the application of Article 11(6) of Regulation No 1/2003 is also inconsistent with paragraph 54(d) of the cooperation notice, since it has not been duly established that it was necessary to re-allocate the case in order to ensure the effective application of EU law. In that regard, the appellants observe that it has neither been demonstrated by the Commission nor found by the General Court that it was impossible for the Federal Cartel Office to impose an effective penalty. The General Court’s assertion, in paragraph 72 of the judgment under appeal, that that national authority might have been unable to impose an effective penalty is speculative.
[para_106]32 The appellants add that it was also not permitted for the re-allocation of the case to be based on the mere fact that the Federal Cartel Office did not object to it. If paragraph 54(e) of the cooperation notice had to be understood as meaning that a failure by the national authority responsible for the case to object is sufficient to relieve that national authority of competence pursuant to Article 11(6) of Regulation No 1/2003, it would have to be held that paragraph 54(e) of that notice disregards the legitimate interests of the undertakings concerned.
[para_107]33 In the view of the appellants, the judgment under appeal also errs in so far as the General Court held, in paragraph 89 thereof, that the Commission is not bound by any specific time limit for the application of Article 11(6) of that regulation. The appellants state, in that regard, that it is apparent, in particular, from recital 17 of that regulation that any re-allocation to the Commission of a case on which a national competition authority has been acting must take place as soon as possible. Even if, in the present case, only the period of approximately 10 months between 14 June 2017, the date of the Federal Cartel Office’s request to be relieved of competence, and 19 April 2018, the date on which the Commission initiated the proceedings, were relevant for assessing whether the time taken to deal with the case was reasonable, the General Court ought to have found that such a duration was excessive.
[para_108]34 The Commission replies that the fourth ground of appeal is in part inadmissible. First, certain arguments put forward in support of that ground of appeal were not raised at first instance. Second, the appellants are asking the Court of Justice to make a new assessment of the facts. That ground of appeal is, in any event, unfounded, as submitted also by the German Government.
Findings of the Court
[para_110]– Admissibility
[para_111]35 As is apparent from the documents before the Court, the appellants’ argument, raised in support of the fourth ground of appeal, that the restructuring of the Silgan group during the proceedings before the Federal Cartel Office did not constitute a change in ‘the facts [of] the case’, as referred to in paragraph 19 of the cooperation notice, was not relied on before the General Court.
[para_112]36 That argument cannot be put forward for the first time before the Court. Indeed, in an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas debated before the General Court (judgments of 1 June 1994, Commission v Brazzelli Lualdi and Others , C‑136/92 P, EU:C:1994:211, paragraph 59, and of 16 April 2026, Colombani v EEAS (Passive or collective harassment) , C‑343/23 P, EU:C:2026:294, paragraph 85).
[para_113]37 Since that argument is, in essence, the only one which the appellants derive from paragraph 19 of the cooperation notice in support of the fourth ground of appeal, it must be concluded that that ground of appeal is inadmissible in so far as it refers to paragraph 19.
[para_114]38 The fourth ground of appeal is also inadmissible in so far as it is based on the argument that the duration of the period of approximately 10 months between 14 June 2017, the date of the Federal Cartel Office’s request to be relieved of competence, and 19 April 2018, the date on which the Commission initiated proceedings, was excessive.
[para_115]39 The appellants do not state why the assessment of that duration, set out in paragraphs 94 to 99 of the judgment under appeal, is incorrect in law. Nor do they allege, in that regard, a distortion of the facts. Their argument therefore amounts to requesting the Court to carry out a fresh assessment of the facts. However, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The assessment of the facts does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (see, to that effect, judgments of 7 October 2004, Mag Instrument v OHIM , C‑136/02 P, EU:C:2004:592, paragraph 39; of 4 October 2024, Ferriere Nord v Commission , C‑31/23 P, EU:C:2024:851, paragraph 89; and of 18 December 2025, WS and Others v Frontex (Joint return operation) , C‑679/23 P, EU:C:2025:976, paragraph 144).
[para_116]– Substance
[para_117]40 Pursuant to the first sentence of Article 11(6) of Regulation No 1/2003, the initiation by the Commission of proceedings for the adoption of a decision for the purposes of applying Article 101 TFEU or Article 102 TFEU has the effect of relieving the national competition authorities of their competence to apply those articles 101 and 102.
[para_118]41 As is apparent from the second sentence of Article 11(6) of that regulation, the fact of relieving the national competition authorities of competence resulting from that decision to initiate proceedings extends to situations in which the case in question is already the subject of proceedings before such authorities. In that situation, the initiation of proceedings by the Commission has the effect of re-allocating the case to that institution, since the national authority already dealing with the case is, like the other national competition authorities, relieved of its competence.
[para_119]42 According to its wording, that provision requires only, for the purposes of relieving the national competition authority already acting on the case of its competence, that the Commission consult that national authority, in order to ascertain its opinion on a possible re-allocation of the case.
[para_120]43 In the present case, the General Court was correct in finding, in paragraph 40 of the judgment under appeal, that that requirement had been complied with. Since the Federal Cartel Office itself had requested the Commission to relieve it of competence, by that request it had expressed its opinion on a possible re-allocation of the case to that institution, in the same way as it could have expressed that opinion after receiving a formal request in that regard from the Commission.
[para_121]44 However, the compatibility with EU law of the initiation of proceedings for the adoption of a decision for the purposes of applying Article 101 TFEU or Article 102 TFEU, which has the effect of relieving a national competition authority which is already examining the case of its competence, cannot depend solely on compliance with the consultation requirement referred to in Article 11(6) of Regulation No 1/2003.
[para_122]45 When adopting a decision to initiate proceedings, the Commission is also required to comply with, inter alia, Article 41 of the Charter, which enshrines the right to good administration. It is true that the act of initiating a procedure for the adoption of a decision is only preparatory in character and therefore may not itself be the subject of an action for annulment. However, any legal defects in that act may be relied on in an action directed against the definitive act for which that act represents a preparatory step (judgments of 11 November 1981, IBM v Commission , 60/81, EU:C:1981:264, paragraph 12, and of 22 April 2021, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission , C‑572/18 P, EU:C:2021:317, paragraph 50).
[para_123]46 The right to good administration implies, inter alia, that the case must be dealt with within a reasonable time. In cases concerning suspected infringements of Article 101 TFEU or Article 102 TFEU, that obligation constitutes, for all members of the network, a general principle of EU law and is, so far as the Commission is concerned, set out in Article 41(1) of the Charter (see, to that effect, judgments of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , C‑105/04 P, EU:C:2006:592, paragraph 35, and of 15 January 2026, Imballaggi Piemontesi , C‑588/24, EU:C:2026:14, paragraphs 44 and 45).
[para_124]47 As regards the re-allocation of cases within the network, the requirement to act within a reasonable time is, in essence, recalled in recital 17 of Regulation No 1/2003 and in paragraphs 7 and 16 of the cooperation notice, from which it is apparent that such a re-allocation must, in the interests not only of the network but also of the undertakings in question, take place ‘as soon as possible’ and be ‘quick’. That requirement is, moreover, given concrete expression in paragraph 18 of that notice, according to which ‘case re-allocation issues’ should, in principle, be resolved ‘within a period of two months, starting from the date of the first information sent to the network’.
[para_125]48 As stated in paragraph 54 of that notice, where a national competition authority is already acting on a case, the ‘first information sent to the network’ is that by which that national authority informs the network, pursuant to Article 11(3) of Regulation No 1/2003, that it is acting on that case.
[para_126]49 It is also apparent from that paragraph 54 that, after the expiry of the indicative time period of two months referred to in paragraph 18 of that notice, the Commission refrains, in principle, from applying Article 11(6) of Regulation No 1/2003.
[para_127]50 That rule of conduct is, however, subject to five exceptions, which are listed in paragraph 54(a) to (e) of the cooperation notice and concern, respectively, the possibility of conflicting decisions in the same case, the possibility of a decision which is obviously in conflict with consolidated case-law, the proceedings being unduly drawn out, the need to develop EU competition policy, in particular when a similar competition issue arises in several Member States or to ensure effective enforcement, and, lastly, the situation in which the national competition authority already acting on the case does not object to that case being re-allocated to the Commission.
[para_128]51 Announcing, by publishing the cooperation notice, that the rules set out therein will apply to the cases to which that notice relates, the Commission imposed a limit on the exercise of its discretion and cannot, as a general rule, depart from those rules, at the risk of being found to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, by analogy, judgments 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, paragraph 211; of 11 September 2008, Germany and Others v Kronofrance , C‑75/05 P and C‑80/05 P, EU:C:2008:482, paragraph 60; and of 14 March 2024, D & A Pharma v Commission and EMA , C‑291/22 P, EU:C:2024:228, paragraph 143).
[para_129]52 In the present case, it is not disputed that the re-allocation of the case to the Commission took place after the indicative time period of two months provided for in paragraph 18 of the cooperation notice had expired.
[para_130]53 It is also common ground that the Federal Cartel Office did not object to that re-allocation. In those circumstances, the exception provided for in paragraph 54(e) of that notice, by which the Commission reserves the possibility to apply, after that indicative period has expired, Article 11(6) of Regulation No 1/2003 on the sole ground that ‘the [national competition authority or authorities concerned] do not object’, could, a priori, apply.
[para_131]54 The appellants maintain, however, that the exception provided for in paragraph 54(e) is incompatible with the right to good administration, since it disregards the legitimate interests of the undertakings concerned.
[para_132]55 It must be stated that that argument does not have to be examined in the context of the present appeal since, in the judgment under appeal, the General Court did not hold that the Commission could confine itself to applying Article 11(6) of Regulation No 1/2003 solely on the basis of the Federal Cartel Office not having objected.
[para_133]56 Indeed, while it found, in paragraphs 23 and 47 of the judgment under appeal, that the only requirement laid down in Article 11(6) of Regulation No 1/2003 consists of consulting the national competition authority concerned, the General Court stated in paragraphs 59, 71, 85, 86, 91 and 92 of that judgment that the application of that provision must be compatible with Article 101 TFEU, with the general principles of EU law, including the principles of proportionality and the protection of legitimate expectations, and with the Charter, Article 41 of which includes the obligation to conduct administrative proceedings within a reasonable time.
[para_134]57 In the present case, the General Court considered that relieving the Federal Cartel Office of its competence was compatible with those standards. In that regard, it held, first, in paragraphs 56 to 60 and 72 of the judgment under appeal, that the restructuring of the Silgan group during the proceedings before that national authority was, because of a loophole in the German legislation then in force, capable of preventing that authority from imposing penalties ensuring the effective application of Article 101 TFEU, and, second, in paragraphs 82 to 84 and paragraphs 93 to 100 of that judgment, that the Commission, which was accordingly better placed to act on the case, had initiated proceedings approximately 10 months after having been informed by the Federal Cartel Office of that loophole in the German legislation, that time period being reasonable in the light of the particular circumstances of the case, according to the General Court.
[para_135]58 From that, the General Court inferred, in paragraphs 59, 60 and 88 of that judgment, that the re-allocation of the case at issue was capable of falling within paragraph 54(d) of the cooperation notice, according to which the Commission may, notwithstanding the indicative time period of two months provided for in paragraph 18 of that notice having expired, apply Article 11(6) of Regulation No 1/2003 where that is necessary to ensure the effective application of the EU competition rules.
[para_136]59 Those grounds of the judgment under appeal are not vitiated by any error of law. Contrary to the appellants’ assertions, the General Court did not have to require that the Commission demonstrate that it had become ‘impossible’ for the Federal Cartel Office to impose an effective penalty. In the light of the objective of the system of cooperation established by Regulation No 1/2003, which, as is apparent from recital 34 of that regulation, consists in ensuring effective application of the EU competition rules, it was sufficient in the present case to find that the Commission had information that the restructuring of the Silgan Group during the proceedings before the Federal Cartel Office was capable of reducingthat national authority’s ability to ensure effective application of those rules. Since the General Court found, in its definitive assessment of the facts, that such information had been brought to the Commission’s attention on 14 June 2017, it was fully entitled to hold, as the Advocate General observed in points 28 to 31 of his Opinion, that that institution could take the view that it was better placed to act on the case and that it was therefore entitled to initiate, within a reasonable period from 14 June 2017, proceedings for the adoption of a decision.
[para_137]60 As the Advocate General observed in point 48 of his Opinion, the General Court also did not err in law in holding, in paragraph 93 of the judgment under appeal, that the reasonableness of the period must be appraised in the light of the circumstances specific to each case. Therefore, contrary to the appellants’ assertions, the time period within which the Commission, in accordance with paragraph 54(a) to (e) of the cooperation notice, may apply Article 11(6) of Regulation No 1/2003 cannot be determined in a general and absolute manner, since its reasonableness may vary from case to case depending on the particular circumstances of each case.
[para_138]61 It follows from all of the foregoing that the General Court did not err in law in holding that the Commission did not, in the present case, depart from the rules of conduct relating to the re-allocation of cases within the network which are set out in the cooperation notice and which must be applied in the light, inter alia, of the right to good administration enshrined in Article 41 of the Charter.
[para_139]62 Consequently, the fourth ground of appeal must be rejected.
The second ground of appeal: infringement of the prohibition of misuse of powers
Arguments of the parties
[para_142]63 The appellants maintain that the General Court misinterpreted and misapplied the prohibition of misuse of powers.
[para_143]64 In their view, the General Court erred, in paragraph 66 of the judgment under appeal, in rejecting their line of argument alleging misuse of powers by confining itself to finding, as it did in paragraph 57 of that judgment, that there was a risk that the Federal Cartel Office would not be able to impose an effective penalty. Rather, the General Court ought to have ascertained whether the restructuring of the Silgan group did actually prevent that national authority from imposing an effective penalty.
[para_144]65 Furthermore, in adopting the decision to initiate proceedings, the Commission acted with the purpose of imposing a fine higher than that which could, in the present case, be imposed by the Federal Cartel Office in the case on which that authority was already acting. The General Court ought to have found that, by acting in that way, the Commission was harmonising the European system of fines, which entails unlawful interference in the sphere of competence of the EU legislature and therefore an infringement of the principle of the separation of powers. If the Commission considered that the German system of penalties was insufficient, it ought to have proposed to the EU legislature a harmonisation of penalties or initiated infringement proceedings against the Federal Republic of Germany.
[para_145]66 The Commission also deprived the appellants of their fundamental right, enshrined in Article 47 of the Charter, to an effective remedy. In that regard, the appellants observe that, because the Federal Cartel Office had been relieved of its competence, they cannot have their case heard before the court which ought to have been competent pursuant to the rules already laid down, namely the Bundesgerichtshof (Federal Court of Justice, Germany), in breach of the principle of the right to a judge assigned by law.
[para_146]67 The Commission and the German Government are of the view that the second ground of appeal is unfounded.
Findings of the Court
[para_148]68 According to the Court’s settled case-law, a measure is only vitiated by misuse of powers if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated or of evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (judgments of 25 February 1987, Banner v Parliament , 52/86, EU:C:1987:106, paragraph 6, and of 9 December 2020, Groupe Canal + v Commission , C‑132/19 P, EU:C:2020:1007, paragraph 31).
[para_149]69 Contrary to the appellants’ assertions, whether there had been a possible misuse of powers had to be examined by ascertaining not whether it was impossible for the Federal Cartel Office to impose an effective penalty, but rather whether the stated purposes coincided with purposes recognised by EU law. Since the General Court, as stated in paragraph 59 of the present judgment, correctly found that the Commission could take the view that it was better placed to ensure the effective application of the EU competition rules, the General Court was entitled to infer, without erring in law, that the application of Article 11(6) of Regulation No 1/2003 coincided with purposes recognised by EU law, with the result that that application was not vitiated by a misuse of powers.
[para_150]70 The argument that the Commission, in the present case, harmonised the system of penalties is also wholly unfounded, since the initiation of proceedings in a case which until that point was being examined by a national competition authority in no way entails such harmonisation in the sense referred to by the appellants.
[para_151]71 Nor has the fundamental right to an effective remedy, enshrined in Article 47 of the Charter, been infringed since, pursuant to the fourth paragraph of Article 263 TFEU, the appellants had an effective remedy against the decision at issue before the General Court, which was the judge assigned by law in the present case. In that regard, the right to a judge assigned by law cannot, as stated in paragraph 31 of the cooperation notice, be interpreted as conferring on the undertakings concerned an individual right to have a given authority act on a case, thereby enabling those undertakings to determine which court is competent to hear any subsequent action. Therefore, the General Court correctly held, in paragraph 54 of the judgment under appeal, that the competence of the EU Courts and not of the national courts was a logical consequence of the adoption by the Commission of the decision at issue.
[para_152]72 It follows from the foregoing that the General Court did not err in law in the interpretation and application of the prohibition on misuse of powers. Consequently, the second ground of appeal must be rejected.
The third ground of appeal: infringement of the principle of proportionality
Arguments of the parties
[para_155]73 The appellants submit that, in order to ascertain whether the application of Article 11(6) of Regulation No 1/2003 by the Commission exceeded what was appropriate and necessary to attain the objective pursued, the General Court ought to have examined whether it was impossible for the Federal Cartel Office to impose an effective penalty. In paragraph 72 of the judgment under appeal, the General Court did no more than find that that national authority might not have been able to impose such a penalty.
[para_156]74 In the alternative, the appellants maintain that the General Court infringed the principle of proportionality by failing to find that Article 11(6) was applied at an excessively late stage. In that regard, they observe that the Federal Cartel Office had been investigating the case for more than three years. If the Commission’s view was that it was justified in opening proceedings, it ought to have done so earlier, in order to avoid the Silgan Group unnecessarily devoting resources to its defence before the Federal Cartel Office. Even if, as the General Court observed in paragraph 82 of the judgment under appeal, it was not until 14 June 2017 that the Commission became aware of the information which led it to initiate the proceedings on 19 April 2018, the approximately 10-month period between those two dates is excessive.
[para_157]75 Once more in the alternative, the appellants’ view is that the alleged advantages of the Commission initiating proceedings were disproportionate compared with the disadvantages caused to the Silgan Group in that regard. Those disadvantages include, in particular, there being two sets of investigation proceedings and the loss of the advantages from which the Silgan group could have benefited before the Federal Cartel Office under the leniency programme implemented by that national authority. It is apparent from paragraph 75 of the judgment under appeal that the General Court did not take account of the disproportionate nature of those disadvantages.
[para_158]76 The Commission replies that the third ground of appeal is in part inadmissible, in so far as the appellants are challenging the General Court’s assessment of the facts without, however, establishing that there has been a distortion of those facts. That ground of appeal is, in any event, unfounded, as the German Government also submits.
Findings of the Court
[para_160]77 The principle of proportionality requires, in accordance with the established case-law of the Court, that acts adopted by the European Union must not exceed what is appropriate and necessary to attain the objective pursued (judgments of 17 May 1984, Denkavit Nederland , 15/83, EU:C:1984:183, paragraph 25, and of 29 July 2024, Koiviston Auto Helsinki v Commission , C‑697/22 P, EU:C:2024:641, paragraph 77).
[para_161]78 As stated in paragraph 59 of the present judgment, the objective of Regulation No 1/2003 is to ensure the effective application of the EU competition rules and, in the present case, the General Court correctly found that the Commission was entitled to take the view that it was the authority best placed to ensure the effective application of those rules, since the restructuring of the Silgan group during the proceedings before the Federal Cartel Office was capable of preventing that national authority from imposing an effective penalty.
[para_162]79 Consequently, the re-allocation of the case to the Commission cannot be regarded as having exceeded what was appropriate and necessary to attain that objective.
[para_163]80 In so far as the appellants maintain, in the alternative, that the initiation of proceedings by the Commission took place at too late a stage, it must be observed that the appellants have not relied, in the context of the present plea, on any distortion of the facts, nor have they put forward, in support of that plea, any legal arguments to establish that the re-allocation of the case to the Commission did not take place within a reasonable time. In those circumstances, that ground of appeal is inadmissible for the same reasons as those set out in paragraph 39 of the present judgment.
[para_164]81 Lastly, to the extent that the appellants rely, in the further alternative, on the disadvantages allegedly caused to the Silgan group by the application of Article 11(6) of Regulation No 1/2003, it must be stated that the requirements to which the application of Article 11(6) is subject, such as those arising from the obligation on the part of the Commission and the other members of the network to observe the right to good administration, ensure an appropriate balance between, on the one hand, the European Union’s interest in the effective application of the competition rules and, on the other hand, the legitimate interests of the undertakings concerned, including the interest in being able to devote their resources to defend themselves before the authority which will actually decide the case. The obligation to carry out any re-allocation of a case within the network within a reasonable time is an integral part of that balance. The fact remains, as stated in paragraph 59 of the present judgment, that the General Court correctly held that the circumstances of the case, characterised by a restructuring of the Silgan group during the proceedings before the Federal Cartel Office, allowed the Commission to relieve that national authority of its competence. In those circumstances, as the General Court observed, in essence, in paragraph 75 of the judgment under appeal, the disadvantages for the Silgan group could not outweigh the public interest in the effective application of the EU competition rules by the Commission.
[para_165]82 It follows from the foregoing that the General Court did not err in law in the interpretation and application of the principle of proportionality. Consequently, the third ground of appeal must be rejected.
[para_166]The fifth ground of appeal: failure to comply with the requirement to state reasons laid down in the second paragraph of Article 296 TFEU
Arguments of the parties
[para_168]83 The appellants complain that the General Court misinterpreted and misapplied the second paragraph of Article 296 TFEU in considering, in paragraphs 61 to 65 of the judgment under appeal, that the Commission had complied with its obligation to state reasons.
[para_169]84 They recall that, under that obligation, the reasoning of the EU authority which adopted the measure must be disclosed in a clear and unequivocal fashion in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review. In the present case, it is not clear from the decision to initiate proceedings why the Commission accepted the request of the Federal Cartel Office. By simply stating, in recital 11 of the decision at issue, that it had taken over the investigation at the request of that national authority, the Commission failed to fulfil that obligation.
[para_170]85 The General Court’s finding that certain press releases enabled the appellants to understand the context of the decision to initiate proceedings is irrelevant for the purpose of assessing whether the second paragraph of Article 296 TFEU has been observed. Indeed, press releases cannot replace the statement of reasons for a decision. That is all the more so where, as in the present case, some of those press releases were published after the decision at issue had been adopted. In that regard, the appellants recall that the lawfulness of a measure must be assessed on the basis of the facts and the law existing at the time when that measure was adopted. Moreover, the reasons, referred to in a press release, which led the Federal Cartel Office to make its request to the Commission, do not necessarily coincide with the reasons why the Commission granted that request.
[para_171]86 The Commission and the German Government maintain that the fifth ground of appeal is unfounded.
Findings of the Court
[para_173]87 As regards the assessment found in paragraphs 61 to 64 of the judgment under appeal, whereby, first, the statement, in recital 11 of the decision at issue, that the proceedings had been initiated at the request of the Federal Cartel Office and, second, the reference, in a number of press releases, including the press release published on 24 April 2018 by that national authority, to difficulties arising for the effective application of the EU competition rules from the restructuring of certain undertakings belonging to the Silgan group, had enabled (i) the appellants to ascertain the reasons why the Commission relieved that national authority of its competence and (ii) the General Court to exercise its power to review the lawfulness of that decision, it must be held that that assessment is included only for the sake of completeness in the examination by the General Court of the second ground of appeal, alleging misuse of powers. However, since that assessment concerns the requirement to state reasons laid down in the second paragraph of Article 296 TFEU, which is distinct from the prohibition of misuse of powers, it is necessary to examine the present ground of appeal alleging failure to comply with that requirement to state reasons, since that ground of appeal remains effective notwithstanding the second ground of appeal alleging infringement of the prohibition of misuse of powers having been rejected in paragraph 72 of the present judgment.
[para_174]88 As regards the substance, it should be recalled that the phrase ‘initiation by the Commission of proceedings’ in Article 11(6) of Regulation No 1/2003 concerns an act of the Commission by which it announces to an undertaking its intention to bring proceedings in order to adopt one of the decisions referred to in Chapter III of that regulation. That act determines the extent to which the Commission relieves the national competition authorities of their competence. Therefore, in order for the application of Article 11(6) to be clear, the act initiating the investigation proceedings must specify the infringement allegedly committed by one or more undertakings during one or more periods on one or more product markets and one or more geographic markets which that act concerns (see, to that effect, judgment of 25 February 2021, Slovak Telekom , C‑857/19, EU:C:2021:139, paragraphs 27 to 29).
[para_175]89 Where, as in the present case, the Commission initiates proceedings in a case on which a national competition authority is already acting, the lawfulness of that step depends, moreover, as has been stated in paragraphs 42 to 51 of the present judgment, on compliance with a number of other requirements, including those relating to prior consultation with that national authority and the application of the rules of conduct set out in the cooperation notice.
[para_176]90 However, the Commission cannot be expected to set out, in a decision to initiate proceedings, the reasons why it takes the view that those requirements are met. As has been recalled in paragraph 45 of the present judgment, such a decision is only preparatory in character and therefore does not constitute, in itself, a challengeable act.
[para_177]91 The decision at issue, which constitutes an act having an adverse effect, must, for its part, enable the persons concerned to ascertain the justifications for the measure and enable the court which is competent to exercise its power of review. Under settled case-law, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of the second paragraph of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 13 March 1985, Netherlands and Leeuwarder Papierwarenfabriek v Commission , 296/82 and 318/82, EU:C:1985:113, paragraph 19, and of 23 April 2026, Deutsche Lufthansa v Ryanair and Condor Flugdienst , C‑457/23 P, EU:C:2026:331, paragraph 151), and in particular by reference to the interest which the addressees of the act may have in obtaining explanations. Consequently, the reasons given for a measure adversely affecting a person are sufficient if that measure was adopted in a context which was known to that person and which enables him or her to understand the scope of the measure concerning him or her (see judgment of 28 March 2017, Rosneft , C‑72/15, EU:C:2017:236, paragraph 122 and the case-law cited).
[para_178]92 In the present case, the measure taken by the Commission in the decision at issue consists, in essence, in finding an infringement of Article 101 TFEU, and imposing a penalty. Nevertheless, it must be held, in the light of the relevant legal rules, which include Article 11(6) of Regulation No 1/2003 and the right to good administration, that it is essential, in order to enable the appellants to exercise their right to a remedy and to enable the EU Courts to exercise their power of review, that the reasons why the case was re-allocated to the Commission, notwithstanding the indicative time period of two months provided for in paragraph 18 of the cooperation notice having expired, are ascertained.
[para_179]93 In the light of that consideration, and of the case-law referred to in paragraph 91 of the present judgment, it must be held that the General Court did not err in law in interpreting and applying the requirement to state reasons laid down in the second paragraph of Article 296 TFEU. Indeed, in paragraphs 61 to 64 of the judgment under appeal, the General Court held that recital 11 of the decision at issue, assessed in the light of the context, known to the appellants, which led the Federal Cartel Office to submit its request and the Commission to take over the case, was sufficient to satisfy that requirement to state reasons. That assessment complies with the case-law referred to above.
[para_180]94 It should also be pointed out, in that regard, that the press releases, although referred to in that assessment by the General Court in order to support the fact that the appellants were aware of the context of the re-allocation of the case to the Commission, must not, however, be regarded as having been necessary for that purpose. The Federal Cartel Office press release dated 24 April 2018, which followed the Commission’s decision to initiate proceedings, indicated to the public a contextual matter which was necessarily already known to the appellants themselves when the proceedings concerning them were pending before that national authority.
[para_181]95 It follows from the foregoing that the fifth ground of appeal must be rejected as being unfounded.
The first ground of appeal: infringement of the principle of subsidiarity
Arguments of the parties
[para_184]96 The appellants maintain that the General Court, in essence, held in paragraphs 39 and 40 of the judgment under appeal that where proceedings relating to a cartel are pending before a national competition authority, the Commission may, under Article 11(6) of Regulation No 1/2003, initiate proceedings and thereby bring to a close the proceedings pending before that national authority simply by consulting that authority beforehand.
[para_185]97 That assessment by the General Court amounts to ruling out the possibility that, in the application of the system of parallel competences established by Regulation No 1/2003, there may be an infringement of the principle of subsidiarity enshrined in Article 5(3) TEU.
[para_186]98 However, according to the appellants, that principle must be taken into consideration in the context of the application of Article 101 TFEU. It follows that administrative action by the Commission in the context of the system of parallel competences established by Regulation No 1/2003 is subject to compliance with that principle. The Commission ought therefore, for the purposes of applying Article 11(6) of that regulation, to ascertain whether the objectives of the proposed action cannot be sufficiently attained by the Member States and whether that action can be better achieved at EU level.
[para_187]99 The misinterpretation of the scope of the principle of subsidiarity led the General Court to find, incorrectly, in paragraph 41 of the judgment under appeal, that the circumstances relied on by the appellants whereby, first, the Federal Cartel Office was about to close its proceedings, second, the infringement at issue concerned only the Federal Republic of Germany and, third, German law permitted an effective fine to be imposed, were irrelevant for the purpose of assessing the substance of the action brought before the General Court.
[para_188]100 In the view of the appellants, the General Court also erred in rejecting, in paragraphs 46 and 47 of the judgment under appeal, the plea of illegality in respect of Article 11(6) of Regulation No 1/2003 raised by the appellants. The General Court having considered that that provision confers, in the light of the role which the EU and FEU Treaties confer on the Commission in investigating infringements of competition law, a very broad power to initiate proceedings, or even a prerogative enabling it to initiate proceedings ‘as it sees fit’, infringed the principle of subsidiarity. According to the appellants, the General Court ought to have held that, where a national competition authority is already acting on a case, the Commission may initiate proceedings only on an exceptional basis.
[para_189]101 As regards the consequences of the restructuring of the Silgan group on whether the Federal Cartel Office could impose a fine, the appellants are of the view that the General Court could not confine itself to making an abstract observation that a restructuring is capable of having such a consequence. According to the appellants, it was for the General Court to make a specific examination of whether the Commission had demonstrated that the restructuring in question actually prevented the Federal Cartel Office from imposing an effective penalty on the undertakings in the Silgan group.
[para_190]102 The Commission replies that the first ground of appeal is unfounded. The principle of subsidiarity does not concern the application of legislative acts of the European Union, but rather their adoption. The application of Article 101 TFEU by the Commission and the national competition authorities cannot have the consequence that those bodies must, for each case allocation, justify themselves as regards the principle of subsidiarity, which was already taken into account when Regulation No 1/2003 was adopted.
[para_191]103 The German Government, while supporting the Commission’s position that the first ground of appeal must be rejected, is of the view that that ground of appeal is ineffective, since the principle of subsidiarity, which concerns the limits of competences between the European Union and the Member States, cannot form the basis of rights which may be relied on by individuals concerned by the application of EU law in a particular case. Indeed, the beneficiaries of Article 5(1) and (3) TEU are not individuals but the Member States. That is reflected in Article 8 of Protocol (No 2) on the application of the principles of subsidiarity and proportionality, which is annexed to the EU and FEU Treaties.
[para_192]104 The Council, for its part, states that, in accordance with Article 5(3) TEU, the principle of subsidiarity does not apply to areas of exclusive competence of the European Union. However, Regulation No 1/2003 falls within the exclusive competence of the European Union, since it establishes the competition rules necessary for the functioning of the internal market, as provided for in Article 3(1)(b) TFEU.
Findings of the Court
[para_194]105 As has been stated in paragraphs 55 and 56 of the present judgment, the General Court did not confine itself to finding that the re-allocation to the Commission of a case on which a national competition authority was acting requires that national authority to be consulted, but stated that such a re-allocation must also be compatible with Article 101 TFEU, with the general principles of EU law, including the principles of proportionality and the protection of legitimate expectations, and with the Charter, Article 41 of which includes the obligation to conduct administrative proceedings within a reasonable time. As has also been set out in paragraph 58 of the present judgment, the General Court also referred to paragraph 54 of the cooperation notice, which lists the exceptional situations in which the Commission reserves, after the indicative time period of two months provided for in paragraph 18 of that notice has expired, the possibility to relieve a national competition authority which is already acting on the case of its competence.
[para_195]106 It was in the light of all those standards and rules of conduct that the General Court held that the Commission could take the view that it was better placed to act on the case.
[para_196]107 Therefore, contrary to the appellants’ assertions, the assessment carried out by the General Court does not amount to recognition that the Commission has the power to relieve a national competition authority acting on a case relating to a suspected infringement of the EU competition rules of its competence ‘as it sees fit’. As is clear from the reasoning set out in the judgment under appeal, since the Commission, by adopting the cooperation notice, limited its own discretion, the application of Article 11(6) of Regulation No 1/2003 must, after the indicative time period of two months provided for in paragraph 18 of that notice has expired, be based on circumstances which are set out in that notice.
[para_197]108 Therefore, even assuming – which the Commission, the German Government and the Council dispute – that the application of Article 11(6) of Regulation No 1/2003 is subject to observing the principle of subsidiarity enshrined in Article 5(3) TEU, which would require, as the appellants submit, that where a national competition authority is already acting on a case, the Commission may initiate proceedings for the adoption of a decision only on an exceptional basis in order to ensure, inter alia, the effective application of competition law, it would be clear that the General Court did in fact verify whether the Commission could duly consider, on the basis of such a criterion, that it was better placed than the Federal Cartel Office.
[para_198]109 It follows that the first ground of appeal is based on incorrect premisses, as regards not only the interpretation of Article 11(6) of Regulation No 1/2003 by the General Court in the light of the relevant standards and rules of conduct which it had identified, but also the application of that provision to the present case in the judgment under appeal.
[para_199]110 Lastly, in so far as the appellants complain that the General Court did not uphold the plea of illegality in respect of Article 11(6) of that regulation which they had raised in the alternative, it must be stated that that criticism is based on those incorrect premisses, whereby that provision, as interpreted and applied by the General Court, allows the Commission to decide ‘as it sees fit’ to relieve a national competition authority which is already acting on the case in question of its competence.
[para_200]111 Since both the main and subsidiary components of the first ground of appeal are therefore based on incorrect premisses, the first ground of appeal is unfounded and must be rejected.
[para_201]112 Since none of the grounds of appeal has been upheld, the appeal must be dismissed in its entirety.
Costs
[para_203]113 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
[para_204]114 Under Article 138(1) of those rules, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
[para_205]115 Since the Commission has applied for costs to be awarded against the appellants and they have been unsuccessful in all their grounds of appeal, the appellants must be ordered to bear their own costs relating to the appeal proceedings and to pay those incurred by the Commission relating to those proceedings.
[para_206]116 Under Article 140(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States and EU institutions which have intervened in the proceedings are to bear their own costs. The Federal Republic of Germany and the Council must, therefore, be ordered each to bear their own costs.
On those grounds, the Court (Third Chamber) hereby:
1. Dismisses the appeal;
[para_209]2. Orders Silgan Holdings Inc., Silgan Holdings Austria GmbH, Silgan International Holdings BV, Silgan Metal Packaging Distribution GmbH and Silgan White Cap Manufacturing GmbH to pay, in addition to their own costs relating to the appeal proceedings, those incurred by the European Commission relating to those proceedings;
[para_210]3. Orders the Federal Republic of Germany and the Council of the European Union each to bear their own costs.
[para_211][Signatures]
[para_212]* Language of the case: German