CELEX: 62019CJ0466
Appeal
Competition
Abuse of dominant position
Market for UMTS-compliant baseband chipsets
Regulation (EC) No 1/2003
Article 18(3)
Decision to request information
Necessity of the information requested
Proportionality
Burden of proof
Self-incrimination

By their appeal, Qualcomm Inc. and Qualcomm Europe Inc. seek to have set aside the judgment of the General Court of the European Union of 9 April 2019, Qualcomm and Qualcomm Europe v Commission (
T‑371/17
, not published,
EU:T:2019:232
; ‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision C(2017) 2258 final of 31 March 2017 relating to a proceeding pursuant to Article 18(3) and to Article 24(1)(d) of Council Regulation (EC) No 1/2003 (Case AT.39711 – Qualcomm (predation)) (‘the decision at issue’).
Legal context
Under recitals 23 and 37 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
):
‘(23)
The [European] Commission should be empowered throughout the [European Union] to require such information to be supplied as is necessary to detect any agreement, decision or concerted practice prohibited by Article [101 TFEU] or any abuse of a dominant position prohibited by Article [102 TFEU]. When complying with a decision of the Commission, undertakings cannot be forced to admit that they have committed an infringement, but they are in any event obliged to answer factual questions and to provide documents, even if this information may be used to establish against them or against another undertaking the existence of an infringement.
…
(37)
This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Regulation should be interpreted and applied with respect to those rights and principles.’
Article 18(1) to (3) of the regulation, that article being entitled ‘Requests for information’, provides:
‘1.   In order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information.
2.   When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which the information is to be provided, and the penalties provided for in Article 23 for supplying incorrect or misleading information.
3.   Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided. It shall also indicate the penalties provided for in Article 23 and indicate or impose the penalties provided for in Article 24. It shall further indicate the right to have the decision reviewed by the Court of Justice [of the European Union].’
Article 24 of that regulation, entitled ‘Periodic penalty payments’, provides:
‘1.   The Commission may, by decision, impose on undertakings or associations of undertakings periodic penalty payments not exceeding 5% of the average daily turnover in the preceding business year per day and calculated from the date appointed by the decision, in order to compel them:
…
(d)
to supply complete and correct information which it has requested by decision taken pursuant to Article 17 or Article 18(3);
…
2.   Where the undertakings or associations of undertakings have satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. …’
Background to the dispute and the decision at issue
The background to the dispute is set out in paragraphs 1 to 18 of the judgment under appeal. For the purposes of the present proceedings, this may be summarised as follows.
Qualcomm and Qualcomm Europe are companies established in the United States which are active in the design and marketing of baseband chipsets.
Following a complaint lodged on 8 April 2010 by Icera Inc., another company active in that sector, the Commission opened an investigation into an alleged abuse of dominant position, within the meaning of Article 102 TFEU, by the appellants, involving the application of predatory pricing in the market for UMTS-compliant (Universal Mobile Telecommunications System) baseband chipsets. In that context, between 7 June 2010 and 14 January 2015, the Commission sent the appellants a number of requests for information on the basis of Article 18 of Regulation No 1/2003.
On 8 December 2015, the Commission sent the appellants a statement of objections, following the initiation of formal proceedings against them on 16 July 2015. In that statement of objections, the Court reached the preliminary conclusion that the appellants had abused their dominant position in the market for UMTS-compliant baseband chipsets by supplying, during the period from 3 February 2009 to 16 December 2011, certain quantities of three of those chipsets to two of their key customers, Huawei and ZTE, below cost, with the aim of eliminating Icera, the appellants’ only competitor in that market during that period. On 15 August 2016, the appellants submitted their observations on the statement of objections.
On 30 January 2017, the Commission sent the appellants a request for information on the basis of Article 18(1) and (2) of Regulation No 1/2003. In the absence of a reply to that request for information, on 31 March 2017, the Commission adopted the decision at issue on the basis of Article 18(3) of the regulation.
Under Article 1 of the decision at issue, the appellants were to supply, within certain periods, the information specified in Annex I thereto, failing which they would incur, pursuant to Article 2 of that decision, a periodic penalty payment of EUR 580000 per day of delay. The appellants sent their answers to the questions put to them within the prescribed period, which had been extended by the Commission in the meantime.
The action before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 13 June 2017, the appellants brought an action for annulment of the decision at issue, in support of which they put forward six pleas in law.
As a preliminary point, the General Court, in paragraphs 29 to 33 of the judgment under appeal, rejected as ineffective the complaint concerning the excessive duration of the administrative procedure, observing that such a complaint was irrelevant in examining an action concerning not a decision making a finding of infringement of Article 102 TFEU, but a decision requesting information.
That having been noted, the General Court, in the first place, rejected the third plea, alleging failure to state reasons for the decision at issue. In that regard, in paragraphs 47 to 54 of the judgment under appeal, the General Court held that, in so far as the decision at issue discloses clearly and unequivocally the presumed infringements which the Commission intended to investigate as well as why the information requested is necessary to assess the evidence in its possession in the light of the arguments put forward by the appellants following the issue of the statement of objections, the decision was adequately reasoned, since the Commission was not required to provide more detailed reasoning on how it intended to use that information for the purpose of examining those arguments.
In the second place, the General Court examined the first two parts of the first plea, alleging infringement of the principle of necessity. First, in paragraphs 69 to 91 of the judgment under appeal, the General Court rejected the first part of the first plea, seeking to find fault with the decision at issue in so far as it went beyond the scope of the investigation carried out as defined in the statement of objections, by requesting information relating to the chips of which the chipsets covered by the investigation are composed and concerning periods adjacent to the period of the infringement defined in that statement of objections. To that end, the General Court held, first of all, that, in order in particular to take account of the arguments put forward by the undertakings concerned, the Commission was entitled to continue with its investigation after the adoption of the said statement of objections, including by issuing requests for additional information, without rendering those requests unlawful or, in itself, calling into question the necessity of the information thus requested. The General Court held, second of all, that the Commission’s powers cannot be limited as to the questions it seeks to raise, provided however that they enable it to obtain information necessary for the investigation carried out and the Commission gives the undertakings concerned the opportunity to be heard. The General Court added that, in any event, it was without expanding the scope of the investigation that the Commission requested the information required, as that information was not only relevant in that it provided insight into the context surrounding possibly unlawful conduct, but also necessary for the application of an appropriate ‘price-cost’ test.
Secondly, in paragraphs 98 to 110 of the judgment under appeal, the General Court rejected the second part of the first plea, seeking to call into question whether the information requested was necessary in view of the presumed infringements which the Commission intended to investigate. In order to do so, the General Court stated, in essence, that by the decision at issue the Commission had sought to obtain information that would allow the ‘price-cost’ test to be established on the basis of data accurately reflecting the situation during the period of the infringement since, in the light in particular of the appellants’ observations on the statement of objections, it had considered that the data on which it had relied for that purpose in the statement of objections did not reflect the prices effectively paid by the appellants’ customers and that element was decisive in ascertaining whether an infringement was committed. Therefore, there was a correlation between the information requested and the presumed infringements in question and that information must be regarded as necessary, even if the Commission had sought to modify or adjust its methodology following the issue of the statement of objections.
In the third place, the General Court examined the second plea, by which the appellants challenged the proportionality of the decision at issue. First of all, in paragraphs 118 to 148 of the judgment under appeal, the General Court rejected the first part of that plea, which overlapped with the third part of the first plea, alleging that that decision was disproportionate in view of the workload it entailed. In that regard, the General Court considered that that workload, significant though it might be, was not disproportionate having regard to the needs of the investigation relating to the presumed infringements which the Commission intended to investigate, particularly when account was taken of the appellants’ observations on the statement of objections. According to the General Court, the fact that the appellants did not store the information requested in the format suggested by the Commission for replying and that their records had not been organised in a systematic way was irrelevant in that regard. Next, the General Court rejected as inadmissible the second part of the second plea, alleging that the periodic penalty payment provided for in Article 2 of the decision at issue was disproportionate. After noting that, by that part of the plea, the appellants implicitly sought annulment of that article, the General Court, in paragraphs 153 to 159 of the judgment under appeal, held that the decision at issue represented a preliminary step in relation to any decision definitively fixing the total amount of a periodic penalty payment and, therefore, did not constitute a challengeable measure. Finally, in paragraphs 164 to 166 of that judgment, the General Court rejected the third part of that plea, alleging that the time limits for responding conferred by the decision at issue were inadequate.
In the fourth place, the General Court rejected the fourth plea, by which the appellants alleged that the Commission had unduly reversed the burden of proof by requiring them to complete tasks which belong to the building of a case and, consequently, fall within the competence of that institution, observing, in paragraphs 172 to 175 of the judgment under appeal, that that plea was based on a misreading of the decision at issue. First, the General Court considered that the Commission had sought not to audit the appellants’ accounts, but rather to secure the necessary information to adjust the ‘price-cost’ test methodology so as to take account of the criticisms which they had raised in their observations on the statement of objections. Secondly, the General Court found that the Commission had also asked the appellants not to prove that they had acted in accordance with the law, but to produce internal documents corroborating their own assertion that, when taking pricing decisions, they relied on the relevant case-law and the Commission guidance.
In the fifth place, the General Court examined and then rejected, in paragraphs 186 to 195 of the judgment under appeal, the fifth plea, seeking to call into question the decision at issue in so far as it infringed the appellants’ right to avoid self-incrimination, by requiring them to respond to questions going beyond the scope of the supply of information that is factual in nature or to demonstrate that they had complied with EU competition rules. In that regard, the General Court noted, in particular, that (i) the information requested was of a purely factual nature, (ii) that information concerned data to which only the appellants could have access and, therefore, the appellants were required to provide that information even if it might be used to establish the existence of anticompetitive conduct and (iii) the appellants had failed to establish that the fact that, in order to respond to the questions put to them, they had to marshal the requested factual data in a document intended to facilitate the Commission’s understanding thereof was capable of constituting an infringement of that right in their regard.
In the sixth place, in paragraphs 201 to 203 of the judgment under appeal, the General Court rejected the sixth plea, alleging infringement of the principle of good administration, noting that it was apparent from the examination of the first to fifth pleas, which overlapped with the complaints relied on in the context of the sixth plea, that it was precisely to comply with the obligations arising from that principle that the Commission had adopted the decision at issue.
Forms of order sought by the parties to the appeal
Qualcomm and Qualcomm Europe claim that the Court should:
–
set aside the judgment under appeal;
–
annul the decision at issue;
–
in the alternative, refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice; and
–
order the Commission to pay the costs incurred by them before the General Court and the Court of Justice.
The Commission contends that the Court should:
–
dismiss the appeal;
–
order the appellants to pay the costs.
The appeal
In support of their appeal, the appellants put forward six grounds of appeal.
The first ground of appeal, alleging failure to adjudicate
Arguments of the parties
By their first ground of appeal, the appellants complain that the General Court failed to rule on all of their pleas and arguments.
In the first place, the appellants claim that the General Court erred, in paragraphs 29 to 33, 101, 102, 110, 147 and 202 of the judgment under appeal, by failing to examine the substance of their argument that the excessive duration of the administrative procedure had adversely affected their rights of defence, dismissing it as irrelevant in that it did not relate to a decision making a finding of infringement of Article 102 TFEU. In order to do so, the General Court erred in law in the interpretation and application to the present case, by analogy, of the case-law arising from the judgment of the General Court of 18 June 2008, Hoechst v Commission (
T‑410/03
,
EU:T:2008:211
, paragraph
). They argue that that case-law makes no distinction according to whether the decision at issue makes a finding of infringement or whether it constitutes another type of final decision and, therefore, that case-law makes it possible to challenge the reasonableness of the duration of an investigation in an action brought against final Commission decisions which impose, or threaten to impose, fines or periodic penalty payments on the undertaking concerned.
In their view, the General Court was therefore also wrong to consider, in paragraph 110 of the judgment under appeal, that it had analysed the argument concerning the excessive duration of the administrative procedure relied on in the first part of the second plea. The General Court confined itself, in paragraph 147 of that judgment, to examining the argument relating to the difficulties faced by the appellants in seeking to provide information relating to facts dating from several years and did not examine the argument that the excessive duration of the investigation carried out harmed their ability to defend themselves effectively.
In the second place, the appellants claim that the General Court erred in failing to examine the sixth plea, alleging infringement of the principle of good administration, on the ground that the other pleas had been rejected. According to the appellants, the General Court erred in law in so far as it failed, in breach of recital 37 of Regulation No 1/2003 and Article 41(1) of the Charter of Fundamental Rights, to address that plea and, in particular, the appellants’ argument that the decision at issue was the result of a biased investigation, rejecting that argument without proper explanation or adequate reasoning.
The Commission disputes those arguments.
Findings of the Court
The first ground of appeal alleges a failure on the part of the General Court to rule on (i) the appellants’ arguments alleging breach of their rights of defence on account of the excessive duration of the administrative procedure and (ii) the sixth plea, alleging infringement of the principle of good administration. In addition, the first ground of appeal also alleges an error of law, allegedly made by the General Court in examining that line of argument, in the interpretation and application of the case-law arising from the judgment of the General Court of 18 June 2008, Hoechst v Commission (
T‑410/03
,
EU:T:2008:211
).
As regards, in the first place, the alleged failure to rule on that line of argument and on the sixth plea, it should be noted, first of all, that, as the appellants themselves implicitly acknowledge, the General Court examined, respectively in paragraphs 29 to 33 and 198 to 203 of the judgment under appeal, the said arguments and plea, before dismissing them as ineffective and unfounded, respectively.
Next, as regards, more specifically, the alleged failure to rule on the argument alleging breach of the appellants’ rights of defence on account of the excessive duration of the administrative procedure, it should be noted that, since the General Court examined that argument as a preliminary point before dismissing it as ineffective, it cannot be criticised for not having examined it again when examining the second part of the first plea. Moreover, it should be noted that in paragraph 110 of the judgment under appeal the General Court did not state that that argument had been analysed when examining the first part of the second plea, but considered that the appellants’ arguments alleging breach of their rights of defence owing to the difficulties which they had, in the light of the level of detail required, in communicating information relating to facts dating from several years overlapped with certain complaints raised in that part of the plea and examined as to the substance in paragraph 147 of the judgment under appeal.
Finally, as regards the alleged failure to rule on the sixth plea, alleging infringement of the principle of good administration, it should be added that the General Court gave adequate reasons as to why that plea had to be rejected. The General Court, in paragraph 201 of the judgment under appeal, noted that the appellants’ arguments put forward in that plea overlapped with those advanced in support of the first to fifth pleas, which were rejected when examining those pleas. Moreover, in paragraph 201 of the judgment under appeal, the General Court considered that it was apparent from the analysis of those pleas that it was precisely to comply with its duty to examine carefully and impartially, in accordance with the case-law on the principle of good administration referred to in paragraph 200 of the judgment under appeal, the arguments put forward by the appellants, in particular in their observations on the statement of objections, in order to prepare its final decision on the possible existence of an infringement of Article 102 TFEU with all due care and attention and on the basis of all the data that might influence it, that the Commission had adopted the decision at issue. The General Court was thus entitled to conclude, in paragraph 202 of the judgment under appeal, that the appellants had failed to establish that the alleged infringement of the principle of good administration was based on bias from the Commission.
As regards, in the second place, the error of law in the interpretation and the application of the case-law arising from the judgment of the General Court of 18 June 2008, Hoechst v Commission (
T‑410/03
,
EU:T:2008:211
, paragraph
), it is sufficient to note that, as the Court of Justice has consistently held, infringement of the principle of observance of a reasonable period is capable of justifying the annulment only of a decision making a finding of infringement following an administrative procedure based on Article 101 or 102 TFEU, where it has been proved that that infringement had adversely affected the rights of defence of the undertakings concerned (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
, paragraphs
and
; of 9 June 2016, CEPSA v Commission,
C‑608/13 P
,
EU:C:2016:414
, paragraph
; and of 9 June 2016, PROAS v Commission,
C‑616/13 P
,
EU:C:2016:415
, paragraph
).
The General Court did not, therefore, err in law when, in paragraph 31 of the judgment under appeal, it recalled the lessons stemming from that case-law, as set out by the General Court in the judgment of 18 June 2008, Hoechst v Commission (
T‑410/03
,
EU:T:2008:211
). The General Court was also fully entitled, next, in paragraphs 32 and 33 of the judgment under appeal, to apply that case-law to the present case, taking the view that, in so far as the action before it concerned not a decision finding an infringement of Article 102 TFEU, but a decision requesting information adopted in an administrative procedure that may possibly result in a decision finding an infringement, the argument alleging that the duration of the administrative procedure was excessive was therefore irrelevant in that action and, therefore, had to be dismissed as ineffective.
In those circumstances, the first ground of appeal must be rejected as unfounded.
The second ground of appeal, relating to the finding that the decision at issue is adequately reasoned
Arguments of the parties
By their second ground of appeal, the appellants submit that the General Court made errors of fact and of law, distorted the evidence relating thereto and failed to state reasons in finding, in paragraphs 35 to 56 of the judgment under appeal, that the decision at issue is adequately reasoned.
In the first place, the appellants complain that the General Court, in particular in paragraphs 81, 82, 85, 127, 132, 136, 137, 139 and 145 of the judgment under appeal, relating to the assessment of the first and second pleas, alleging infringement of the principles of necessity and of proportionality, erred in fact and distorted evidence produced by them.
In the second place, the appellants claim that the General Court distorted that evidence, in that, in paragraphs 48 to 53 of the judgment, the General Court failed to take account of the correspondence between them and the Commission, before and after the adoption of the decision at issue, in order to seek clarification of a number of questions and of the scope of the investigation carried out.
In the third place, the appellants dispute the General Court’s finding, set out in paragraph 52 of that judgment, that the conclusion that the decision at issue is adequately reasoned was not called into question by their claims that the Commission did not explain how the information requested would enable it to respond to the arguments which they had put forward in their observations on the statement of objections or to assess their relevance to its investigation. The appellants claim that those considerations are not only inadequate, but also manifestly unfounded, owing to errors made by the General Court in paragraphs 53 to 55 of the judgment under appeal, which are examined in the context of the third ground of appeal.
The Commission contends that the second ground of appeal must be rejected as inadmissible, since the appellants fail to indicate precisely the contested elements of the judgment under appeal and to substantiate their arguments in detail. It also submits that, in any event, that ground of appeal is unfounded.
In their reply, the appellants argue that, in their application at first instance, they set out in detail the reasons why the decision at issue was inadequately reasoned and that, on that basis, they showed precisely and in detail, in their appeal, the General Court’s alleged errors in finding otherwise.
Findings of the Court
The second ground of appeal alleges errors of fact and of law, distortion of the evidence relating thereto and failure to state reasons on the part of the General Court in finding, in paragraphs 35 to 56 of the judgment under appeal, that the decision at issue is adequately reasoned.
It should be recalled, as a preliminary point, that according to settled case-law, first of all, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review their legal characterisation and the legal conclusions which were drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 20 September 2018, Spain v Commission,
C‑114/17 P
,
EU:C:2018:753
, paragraph
and the case-law cited).
Next, where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new appraisal of the facts and the evidence (judgment of 25 June 2020, SatCen v KF,
C‑14/19 P
,
EU:C:2020:492
, paragraph
).
Furthermore, although distortion of the evidence may consist of an interpretation of a document contrary to the content of that document, it must be obvious from the file before the Court of Justice, and it presupposes that the General Court has manifestly exceeded the limits of a reasonable assessment of that evidence. In that regard, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court (judgment of 30 January 2020, České dráhy v Commission,
C‑538/18 P and C‑539/18 P
, not published,
EU:C:2020:53
, paragraph
and the case-law cited).
In accordance with the case-law referred to in paragraph 43 above, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal. Where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly disregarded by that Court, it fails to satisfy the requirements under the above provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission,
C‑70/16 P
,
EU:C:2017:1002
, paragraph
and the case-law cited).
In the present case, as regards, in the first place, the second argument put forward by the appellants, recalled in paragraph 37 above, which should be examined first, it must be observed that the appellants merely set out that argument, referring to the arguments which they had put forward before the General Court, without in any way showing the errors of appraisal which, in their view, led to the alleged distortion and, more particularly, without showing how the General Court’s alleged failure to take account of the correspondence between them and the Commission in finding that the decision at issue is adequately reasoned amounts to a distortion of that evidence. It follows that that argument clearly fails to satisfy the requirements referred to in paragraphs 42 to 45 above.
As regards, in the second place, the first and third arguments raised by the appellants, recalled in paragraphs 36 and 38 above, it should be noted that those arguments seek to challenge findings of fact and considerations made by the General Court in finding that the information requested was necessary and proportionate. Those arguments therefore overlap with certain arguments raised in the third and fourth grounds of appeal and will therefore be analysed when the latter are examined.
In the light of the foregoing, the second ground of appeal must be rejected as manifestly inadmissible.
The third ground of appeal, concerning the finding that the information requested by the decision at issue was necessary
By their third ground of appeal, the appellants complain that the General Court erred in law, failed to comply with its obligation to state reasons and distorted evidence in finding that the information requested by the decision at issue was necessary. That ground of appeal contains five parts.
The first to third parts
–
Arguments of the parties
By the first to third parts of the third ground of appeal, the appellants submit that the General Court’s conclusions that (i) the decision at issue did not modify the scope of the investigation, (ii) the Commission was entitled lawfully to request information covering periods that fell outside of the scope of the investigation as set out in the statement of objections, and (iii) the information requested by that decision was necessary, are vitiated by errors of law and of fact, by a distortion of the evidence relating thereto and by a failure to state reasons.
By the first part, the appellants claim that the General Court was wrong to conclude, in paragraphs 81, 82 and 91 of the judgment under appeal, that the decision at issue did not modify the scope of the investigation. In their view, first of all, the General Court failed to have regard to the correspondence between the appellants and the Commission in which they asked the latter to confirm that scope in order to understand for what it was being investigated. Next, according to the appellants, the General Court failed to note that, by the decision at issue, the Commission had expanded that scope by doubling its time frame and requesting extensive information concerning seven chipsets components instead of three chipsets, without there being any need for the Commission to address the arguments raised by the appellants. Lastly, the appellants claim that the General Court failed to note that the expansion of the scope of the investigation was corroborated by the supplementary statement of objections which, based on data obtained through the decision at issue, contributed to building an entirely new case against the appellants, based in particular on a new ‘price-cost’ test, ‘maintaining only the “shell” of the case advanced in the statement of objections’.
In so doing, the General Court, in paragraph 62 of the judgment under appeal and in paragraph 69 et seq. thereof, infringed established case-law which requires that the case be assessed in the light of all the facts and of their context, and in particular of the fact that the decision at issue was adopted at a very advanced stage of an extraordinarily lengthy administrative procedure and two years after the statement of objections was issued. Rather, according to the appellants, by relying on the Commission’s broad powers of investigation, the General Court co-opted the Commission’s point of view, without ascertaining whether the Commission had explained the weighting and assessment of the factors taken into account.
In that context, the appellants submit that the General Court also erred in law in paragraph 73 of that judgment, basing itself by analogy on the case-law arising from the judgment of the General Court of 30 September 2003, Atlantic Container Line and Others v Commission (
T‑191/98 and T‑212/98 to T‑214/98
,
EU:T:2003:245
), in order to conclude that Article 18(2) and (3) of Regulation No 1/2003 does not impose any restriction on the Commission as to the timing of requests for information, which would effectively give the Commission carte blanche to investigate undertakings in any manner and for as long as it desires, in violation of the principles of necessity, proportionality and good administration, of the letter and the spirit of recital 23 and Article 18 of this regulation as well as the judgment of 10 March 2016, HeidelbergCement v Commission (
C‑247/14 P
,
EU:C:2016:149
).
By the second part, the appellants submit that, in paragraphs 85, 88 and 127 of the judgment under appeal, the General Court distorted the evidence in that it misread (i) the type of data recorded in their internal accounting system and of those relied upon by the Commission to conduct the ‘price-cost’ analysis in the statement of objections and (ii) the criticisms of the method adopted in that statement of objections.
In addition, the appellants criticise the General Court’s findings on the Commission’s need to request information relating to periods predating and postdating the period of the infringement. In that regard, the appellants complain that the General Court erred in law, in paragraph 86 of the judgment under appeal, by applying to the present case, by analogy, the judgment of the General Court of 22 March 2012, Slovak Telekom v Commission (
T‑458/09 and T‑171/10
,
EU:T:2012:145
, paragraph
), in order to recognise the Commission’s need to request information relating to a period predating the period of the infringement for the purpose of setting out the context surrounding the conduct during the latter period. According to the appellants, the facts at issue in that latter judgment and in the case-law cited therein, which concerned decisions adopted before the statement of objections and intended to set out the context surrounding the unlawful conduct, are different from those underlying the present case.
The appellants also dispute the General Court’s findings, in paragraphs 87 and 90 of the judgment under appeal, that the Commission was entitled to request data relating to 2008 and to their 2013 fiscal year. To that end, they claim that the judgment under appeal fails to state reasons in relation to those findings, in that the General Court failed to establish the relevance of those data for the purpose of assessing the alleged infringement.
By the third part, the appellants complain, first of all, that the General Court failed to state to the requisite legal standard, in paragraphs 99 to 111 of the judgment under appeal, the reasons why the information requested by the decision at issue was necessary for the Commission to establish the objections set out in the statement of objections.
Next, the appellants submit that the General Court, in particular in paragraphs 98, 99 and 188 of the judgment under appeal, made an error of fact and distorted the evidence in finding that the Commission requested additional data to reconstruct the prices effectively paid by their customers in order to respond to the criticisms made in their response to the statement of objections. In the light of the explanations provided by the appellants in that response, those data were neither necessary nor relevant to that end.
Finally, the appellants dispute the General Court’s findings of fact in paragraphs 105 to 107 of the judgment under appeal that the reference in the decision at issue to an annex to the response to a previous request for information had to be understood as asking them to produce data of the same nature, reiterating that, by that reference, the Commission had asked them to redo the accounting work in order to audit their accounts anew. According to the appellants, the General Court therefore also erred in law in considering that the information requested bore a correlation to the alleged infringement, which is further corroborated by the supplementary statement of objections.
The Commission contends that the first to third parts of the third ground of appeal must be rejected as inadmissible. The appellants neither identified sufficiently precisely the evidence alleged to have been distorted nor showed the errors of appraisal which led to such a distortion nor substantiated their claims alleging a failure to state reasons in the judgment under appeal. Rather, they merely repeated the arguments raised before the General Court in order to obtain a re-examination of those arguments. Moreover, the Commission contends that those parts are, in any event, unfounded.
In their reply, the appellants essentially reiterate the arguments put forward in their appeal and claim that they showed the errors made by the General Court in assessing their arguments put forward at first instance and the facts of the case.
–
Findings of the Court
The first to third parts of the third ground of appeal, which it is appropriate to examine together, seek to establish that the General Court made errors of law and of fact, that it distorted the evidence relating thereto and that it failed to give adequate reasons for the judgment under appeal by concluding that (i) the decision at issue did not modify the scope of the investigation carried out as set out in the statement of objections, (ii) the Commission was entitled lawfully to request information covering periods that fell outside of that scope and (iii) the information requested by that decision was necessary.
As regards, in the first place, the General Court’s alleged errors of fact and distortions of the evidence referred to in paragraphs 51, 54, 58 and 59 above, it should be noted that the appellants merely mention those facts and that evidence allegedly distorted by the General Court, reiterating in essence their assessment thereof at first instance, without, however, adducing any evidence which clearly shows the errors of appraisal which allegedly led the General Court to such a distortion or demonstrating that the General Court manifestly exceeded the limits of a reasonable assessment of that evidence.
Consequently, in accordance with the case-law referred to in paragraphs 42 to 45 above, in so far as the first to third parts of the third ground of appeal seek to show that the General Court erred in fact and distorted the evidence relating thereto, those parts must be rejected as manifestly inadmissible.
As regards, in the second place, the merits of those parts which are admissible, it should be noted that they seek, in essence, to call into question the General Court’s finding that the information requested by the decision at issue was necessary from the point of view of its material and temporal scope, by alleging errors of law and a failure to state reasons in the judgment under appeal.
In that regard, it must be borne in mind, as a preliminary point, that the Court of Justice has held that the statement of objections is a procedural and preparatory document which, in order to ensure that the rights of defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing it from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (judgment of 24 September 2009, Erste Group Bank and Others v Commission,
C‑125/07 P, C‑133/07 P and C‑137/07 P
,
EU:C:2009:576
, paragraphs
and
).
It follows that the Commission is not bound by the assessments of facts or of law set out in the statement of objections. On the contrary, it must give as reasons for its ultimate decision its final assessments based on the results of the whole of its investigation as they stand at the time when the formal procedure is closed, and it is not obliged to explain any differences in relation to its provisional assessments contained in the statement of objections (see, to that effect, order of 18 June 1986, British American Tobacco and Reynolds Industries v Commission,
142/84
, not published,
EU:C:1986:250
, paragraph
, and judgment of 17 November 1987, British American Tobacco and Reynolds Industries v Commission,
142/84 and 156/84
,
EU:C:1987:490
, paragraph
).
The Court of Justice has also stated that the Commission is entitled to require the disclosure only of information which may enable it to investigate presumed infringements which justify the conduct of the investigation and are set out in the request for information (judgment of 10 March 2016, HeidelbergCement v Commission,
C‑247/14 P
,
EU:C:2016:149
, paragraph
).
Having regard to the broad powers of investigation conferred on the Commission by Regulation No 1/2003, it is for the Commission to decide whether a particular item of information is necessary to enable it to bring to light an infringement of the competition rules. Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information enabling it better to define the scope of the infringement, determine its duration or identify the circle of undertakings involved (see, to that effect, judgments of 18 October 1989, Orkem v Commission,
374/87
,
EU:C:1989:387
, paragraph
, and of 22 October 2002, Roquette Frères,
C‑94/00
,
EU:C:2002:603
, paragraph
).
As regards the judicial review exercised by the EU judicature of the Commission’s finding that an item of information is necessary, the Court of Justice has held that necessity must be judged in relation to the purpose stated in the request for information, namely the suspected infringement which the Commission intends to investigate (see, to that effect, judgment of 10 March 2016, HeidelbergCement v Commission,
C‑247/14 P
,
EU:C:2016:149
, paragraphs
and
). The requirement that a correlation must exist between the request for information and the suspected infringement is satisfied if the Commission could reasonably suppose, at the time of the request, that the information may help it to determine whether the infringement has taken place (see, to that effect, judgment of 19 May 1994, SEP v Commission,
C‑36/92 P
,
EU:C:1994:205
, paragraph
).
In the present case, it should be noted, first of all, that the General Court, in paragraph 62 of the judgment under appeal, did not err in law by referring, as a preliminary point, to the case-law of the Court of Justice cited in paragraphs 69 and 70 above.
Next, the General Court did not err in law in considering, in essence, in paragraphs 69 to 76 of the judgment under appeal, that, in so far as the information requested is necessary and the request for information indicates the essential elements defined in Article 18(2) and (3) of Regulation No 1/2003, that provision does not restrict the Commission’s power to send requests for information after the statement of objections has been issued, since the Commission is entitled to continue with its investigation after the adoption of that statement, in particular to obtain all necessary clarification of the arguments and the evidence put forward by the undertakings concerned in their response to that statement, without this rendering those requests unlawful or, in itself, calling into question the necessity of the information requested.
It is apparent from the case-law cited in paragraphs 66, 67 and 69 above that, since the statement of objections is a provisional measure liable to be changed, the Commission is not bound by the assessments of fact made therein. On the contrary, it is required to evaluate those assessments on the basis of the factors emerging from the whole of its investigation and, in particular, the observations submitted by the parties, with a view to adjusting and supplementing its arguments in support of the objections which it maintains. The Commission is therefore entitled to request further information for that purpose, in particular in order better to define the scope of the infringement, provided that that information is necessary within the meaning of the case-law referred to in paragraphs 68 to 70 above.
Finally, as regards the question of whether the information requested by the decision at issue was necessary, it must be noted that the necessity of that information follows from two sets of findings of fact made by the General Court in paragraphs 85, 88 to 90, 98 and 99 of the judgment under appeal, which, as held in paragraphs 63 and 64 above, the appellants have not succeeded in calling into question.
First, the General Court noted that following, inter alia, the appellants’ observations on the statement of objections, the Commission had taken the view that the data on which it had relied in order to establish the ‘price-cost’ test in the statement of objections did not reflect the prices effectively paid by the appellants’ customers during the period of the infringement, because of the revenue recognition principles applied by the appellants, as recalled by them in those observations, and because the chipsets at issue had been sold in different configurations. Secondly, the General Court considered that the information requested, including that relating to the periods adjacent to the period of the infringement, was specifically intended to remedy such a divergence by obtaining data accurately reflecting the situation during that period in order to establish an appropriate ‘price-cost’ test, as that test was decisive in ascertaining the suspected infringement by the appellants.
In those circumstances, it cannot be claimed that the General Court erred in law or failed to comply with its obligation to state reasons in concluding, in paragraphs 86, 87, 91, 100 and 103 of the judgment under appeal, that, even if the Commission had sought, by relying on the information requested, to modify or adjust its methodology in the light, in particular, of the appellants’ observations, that information was necessary within the meaning of the case-law referred to in paragraphs 68 to 70 above, in the sense that the Commission could reasonably suppose that that information would help it to determine whether the alleged infringement had taken place.
In the light of all of the foregoing, the first to third parts of the third ground of appeal must be rejected as being manifestly inadmissible in part and unfounded in part.
The fourth part
–
Arguments of the parties
By the fourth part of the third ground of appeal, the appellants claim that the General Court erred in law and made a manifest error of assessment by rejecting as ineffective, in paragraphs 108 and 109 of the judgment under appeal, on the basis, inter alia, of the judgment of the General Court of 22 March 2012, Slovak Telekom v Commission (
T‑458/09 and T‑171/10
,
EU:T:2012:145
), their argument that the supplementary statement of objections, adopted after the decision at issue, confirmed that that decision was not necessary.
According to the appellants, unlike the requests for information which were the subject of that judgment, this statement of objections merely confirmed and amplified the arguments put forward in their application. They argue that the said statement of objections therefore constituted further evidence that the decision at issue was unnecessary, which, had it been taken into consideration by the General Court, would have led the latter to a different conclusion.
The Commission disputes that argument.
–
Findings of the Court
The fourth part of the third ground of appeal concerns the General Court’s alleged error of law and manifest error of assessment in rejecting as ineffective, in paragraphs 108 and 109 of the judgment under appeal, the appellants’ argument that the supplementary statement of objections proved that the decision at issue was not limited to what was necessary for its stated purpose, in that that statement had been adopted after the decision at issue.
In that regard, it is sufficient to note, first, as regards the alleged manifest error of assessment, that the appellants merely mention that error without in any way establishing it. Secondly, as regards the alleged error of law, it should be recalled that, according to settled case-law, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted, so that measures postdating the adoption of a decision cannot affect that decision’s validity (judgment of 17 October 2019, Alcogroup and Alcodis v Commission,
C‑403/18 P
,
EU:C:2019:870
, paragraph
and the case-law cited).
It must therefore be concluded that the General Court did not err in law in rejecting as ineffective, in paragraph 109 of the judgment under appeal, the appellants’ arguments seeking to call into question the legality of the decision at issue on the basis of a measure postdating its adoption, such as the supplementary statement of objections.
The fourth part of the third ground of appeal must therefore be rejected as unfounded.
The fifth part
–
Arguments of the parties
By the fifth part of the third ground of appeal, the appellants submit that the General Court failed to take into account all the relevant evidence, in so far as it refused to place on the file their response to the supplementary statement of objections.
In particular, the appellants complain that the General Court erred in law in finding that such further evidence had been produced after the oral part of the procedure had been completed and that the reasoning it relied upon to reject it was ‘manifestly flawed and inadequate’. The appellants maintain that they submitted their response to the supplementary statement of objections as soon as it was submitted to the Commission and that the General Court did not justify its refusal to reopen the oral part.
The Commission disputes those arguments.
–
Findings of the Court
The fifth part of the third ground of appeal concerns the General Court’s alleged error of law and failure to state reasons in that it refused to place on the file as evidence the appellants’ response to the supplementary statement of objections.
In that regard, it should be noted that the General Court did not err in law and that it gave proper reasons for its refusal to place on the file as evidence the appellants’ response to the supplementary statement of objections. The General Court rightly pointed out, in paragraph 24 of the judgment under appeal, that that response was lodged after the close of the oral part of the procedure, before finding, without being challenged by the appellants before the Court of Justice, that none of the conditions laid down in the Rules of Procedure of the General Court for the reopening of the oral part of the procedure before the General Court was met.
The fifth part of the third ground of appeal must therefore be rejected as unfounded and, accordingly, the third ground of appeal must be rejected in its entirety.
The fourth ground of appeal, relating to the finding that the decision at issue is proportionate
By their fourth ground of appeal, the appellants allege a number of errors of fact and of law, and distortion of the evidence relating thereto, on the part of the General Court in its finding that the decision at issue is proportionate. This ground of appeal contains four parts.
The first to third parts
–
Arguments of the parties
By the first to third parts of the fourth ground of appeal, the appellants challenge the General Court’s finding that the information requested by the decision at issue was proportionate.
By the first part, the appellants complain that the General Court failed to understand, or even disregarded, certain essential facts of the case and distorted the evidence relating thereto. First, according to the appellants, the General Court failed to observe, in paragraphs 85 and 127 of the judgment under appeal, that the Commission did not request, at any stage of the investigation that culminated in the statement of objections, the accounting data for each individual component of the three chipsets under investigation, although the General Court accepted, in paragraph 85 of that judgment, that it could have obtained that information at any point in time.
Secondly, the General Court failed to have regard to the fact that, in order to recover the data required, the appellants were obliged to identify, retrieve and analyse around 25000 pages of documents stored in an external facility, which they were under no obligation to maintain.
By the second part, the appellants dispute the General Court’s finding that the format suggested by the Commission to respond to certain questions was not mandatory. In that regard, first of all, they complain that, in paragraph 131 of the judgment under appeal, the General Court erred in law in its interpretation of the case-law on the concept of ‘information’. They argue that it is clear from the Opinion of Advocate General Wahl in HeidelbergCement v Commission (
C‑247/14 P
,
EU:C:2015:694
, points
and
) that an undertaking may be required only to provide information, and cannot be required to complete tasks which belong to the Commission’s competence to build its case, and that, in principle, the Commission is not entitled to require the recipient of a decision requesting information to provide that information in all circumstances in a specific format.
The appellants further submit that, in the present case, the General Court distorted the evidence by considering the information requested from them to be facts or documents, whereas that evidence consisted instead of calculations, details, codes and hypothetical prices for products that did not qualify for a specific financial incentive agreed with the customer, and analyses and interpretations of historical assumptions made by predecessors of current employees.
Next, the appellants dispute the General Court’s findings, respectively in paragraphs 132 and 133 of the judgment under appeal, that the formats suggested by the decision at issue to respond to certain questions raised were not mandatory and tended to facilitate their task. In particular, as regards the first finding, they submit that they were obliged to complete a worksheet annexed to that decision, which was not maintained in their normal course of business and caused them difficulties that were the subject of discussions with the Commission.
Finally, the appellants submit that the General Court erred in finding, in paragraph 135 of the judgment under appeal, that the fact that the Commission had to provide guidance on how to respond to the decision at issue did not establish the disproportionate nature of the burden imposed on them in responding to the questions raised by the decision at issue.
By the third part, the appellants dispute the General Court’s findings relating to their obligation to maintain the data and documents requested. First of all, the appellants complain, in essence, that the General Court, in paragraphs 87, 136, 137 and 139 of the judgment under appeal, erred in law and made a manifest error of assessment in finding that (i) they were obliged to maintain detailed price and cost data since 2008, (ii) their records were ‘disorganised’ and (iii) the Commission had not requested information other than information to which only the appellants had access.
In that regard, first, the appellants observe that (i) they were under no legal obligation to maintain the types of data required by the decision at issue and (ii) they had not become aware of the complaint which had led to the opening of the investigation, of which the alleged infringement represented a negligible part, until 2010. They add that the first time the Commission requested information on prices and costs from them was in July 2013 and that it was not until July 2014 that the Commission informed them that the focus of the investigation carried out had become the alleged predation. Secondly, the appellants submit that their records were not ‘disorganised’ and that they were able to provide the information requested only because they kept documents that they were under no obligation to keep. Thirdly, the appellants observe, in essence, that it is apparent from the statement of objections and paragraph 145 of the judgment under appeal that the data requested by the decision at issue were provided to them by their customers, with the result that the Commission could have requested those data from the latter.
Next, the appellants submit that, by taking the view, in paragraph 136 et seq. of the judgment under appeal, that the information requested was proportionate in the light of the burden imposed on them, even though the facts of the case were manifest proof of the opposite, the General Court itself infringed the principle of proportionality.
Lastly, the appellants submit that paragraph 147 of the judgment under appeal, in which the General Court examined their argument that it would be difficult to provide information relating to facts dating from several years, and the refusal to place on the file their response to the supplementary statement of objections are vitiated by errors of law and of fact, which are examined in the context of the consideration of the first ground of appeal and the fourth part of the third ground of appeal.
The Commission contends that the first part of this ground of appeal as well as some of the arguments relied on in the context of the second and third parts thereof and presented, respectively, in paragraphs 96, 98 and 101 above must be rejected as inadmissible. According to the Commission, the appellants merely repeated arguments presented at first instance and failed to specify the evidence allegedly distorted or show the General Court’s alleged errors. As to the remainder, the Commission disputes the merits of the appellants’ arguments.
In their reply, the appellants maintain that, in their appeal, they clearly identified the facts and evidence allegedly distorted by the General Court as well as their effect on the finding that the decision at issue is proportionate.
–
Findings of the Court
The first to third parts of the fourth ground of appeal, which it is appropriate to examine together, seek to show that the General Court erred in fact, distorted the evidence relating thereto and failed to state reasons in the judgment under appeal in finding that the information requested by the decision at issue was proportionate.
As regards, in the first place, the admissibility of those parts of the ground of appeal, it should be noted that, in so far as, by them, the appellants complain that the General Court misconstrued certain facts, made manifest errors of assessment and errors of law, and distorted the evidence relating thereto, those parts must be rejected as manifestly inadmissible, in accordance with the case-law cited in paragraphs 42 to 45 above.
First, as regards the errors of assessment and distortions of the evidence referred to in paragraphs 93 and 96 above, the appellants merely mention those alleged errors of fact and distortions, without in any way establishing them. Secondly, as regards the errors of assessment and of law referred to in paragraphs 98 and 101 above, the appellants do no more than, respectively, reiterate arguments put forward before the General Court based on facts expressly rejected by it and, in essence, call into question the General Court’s assessment of the facts of the case without, however, alleging that they were distorted.
As regards, in the second place, the merits of the admissible part of the first to third parts, it must be held, first of all, that the first one of those parts must be regarded as seeking to call into question the General Court’s failure, in finding that the information requested by the decision at issue was proportionate, to take account of the burden imposed in order to find and analyse the documents capable of providing that information.
It is clear from paragraph 122 of the judgment under appeal that the General Court expressly recognised the significant workload this entailed. However, the General Court also noted, in paragraph 121 of that judgment, that, in accordance with the case-law, which the appellants do not dispute, the proportionality of a request for information must be assessed in relation to the needs of the investigation, and the fact that such a request involves a significant workload for an undertaking is not sufficient per se to establish that it is disproportionate. In that regard, the General Court, in paragraphs 124 to 128 of that judgment, (i) noted that the alleged practice under investigation was such as to justify the provision of a significant amount of information and (ii) recalled that that information was necessary in the light of the purpose of that investigation. The General Court therefore correctly concluded, in paragraph 123 of that judgment, that the workload required to provide the information requested was not disproportionate having regard to the needs of the investigation relating to the alleged presumed infringement, particularly when taking account of the appellants’ replies to the statement of objections.
Next, as regards the second part, in which the appellants challenge the General Court’s finding that the format suggested by the Commission for replying to certain questions raised by the decision at issue was not mandatory, it must be held that, having regard to the wording of those questions and the introductory information for replying thereto annexed to that decision, the appellants failed to show that the General Court manifestly exceeded the limits of a reasonable assessment of that decision, within the meaning of the case-law referred to in paragraph 44 above, by holding, in paragraphs 132 and 133 of the judgment under appeal, that (i) it in no way appeared from that decision that the format suggested by the Commission for replying to the said questions was obligatory and that the appellants did not have the option of adapting it if that proved more suitable, and (ii) that format tended rather to facilitate the appellants’ task.
Consequently, given that the General Court’s findings referred to in paragraph 110 above were sufficient to reject the appellants’ argument that the imposition of a mandatory format for replying to the decision at issue was such as to demonstrate that the information requested by that decision went beyond what was necessary in the light of the purpose of the investigation, the error of law in interpreting the case-law relating to the concept of ‘information’ which could vitiate paragraph 131 of the judgment under appeal, even if it were established, would not, in any event, be capable of leading to the annulment of the judgment under appeal. The applicants’ criticisms in that regard are therefore ineffective and must be set aside accordingly (see, to that effect, judgments of 14 June 2018, Makhlouf v Council,
C‑458/17 P
, not published,
EU:C:2018:441
, paragraph
and the case-law cited, and of 14 March 2019, Meta Group v Commission,
C‑428/17 P
, not published,
EU:C:2019:201
, paragraph
).
Finally, as regards the third part, it should be noted, first, that, in so far as it refers to paragraph 147 of the judgment under appeal, the arguments relied on in support of that part overlap in particular with those relied on in the fourth part of the third ground of appeal and must therefore be rejected for the same reasons as those set out in paragraphs 82 to 84 above. Secondly, in so far as the third part of the ground of appeal alleges that the General Court made errors of law and manifest errors of assessment in determining the scope of the appellants’ duty to maintain the data and documents requested by the decision at issue and the scope of the data available to them, it must be held that that part of the ground of appeal is based on a misinterpretation of the judgment under appeal and must, therefore, be rejected as unfounded.
It should be noted that the General Court’s findings criticised by the appellants were expanded in the context of the assessment, set out in paragraphs 136 to 141 of the judgment under appeal, of the merits of two arguments put forward in order to call into question the proportionality of the information requested. Those arguments are based, respectively, on the practical difficulties which the appellants encountered in obtaining some of that information and the fact that they were compelled to undertake work on behalf of the Commission in order to review documents already in its possession to determine in particular what had not previously been provided.
In that context, first, in paragraphs 136 and 137 of the judgment under appeal, the General Court made no finding on the appellants’ possible obligation to maintain data or documents. On the contrary, the General Court acknowledged that undertakings could not, as a rule, be obliged to provide the Commission with documents which are no longer in their possession and which they were no longer under any legal requirement to maintain, while holding that it was nevertheless incumbent upon the appellants, at least from the time of the first requests for information from the Commission in June 2010, to act with greater diligence and to take all appropriate measures in order to preserve such evidence as might reasonably be available to them. The General Court also held, without being challenged by the appellants, not that their records were ‘disorganised’, but that the manner in which they store them was irrelevant for the purpose of assessing the proportionality of the decision at issue.
Secondly, the General Court’s finding, in paragraph 139 of the judgment under appeal, that it is not apparent from that decision that the Commission has asked for information other than information to which only the appellants have access must be regarded as seeking not to assert that the information requested could not be provided by the appellants’ customers, but to rule out that that information was in its entirety in the Commission’ possession, so that it was not in a position to carry out that analysis itself.
In the light of all of the foregoing, the first to third parts of the fourth ground of appeal must be rejected as being manifestly inadmissible in part, ineffective in part and unfounded in part.
The fourth part
–
Arguments of the parties
By the fourth part of the fourth ground of appeal, the appellants complain that, in paragraphs 150 to 159 of the judgment under appeal, the General Court erred in law in concluding that the amount of the periodic penalty payment provided for in Article 2 of the decision at issue is proportionate.
The appellants claim that they were in fact obliged to respond to that decision, under the threat of very substantial periodic penalty payments and that, in the light of the difficulties faced to comply with the significant requests contained in that decision, there was a real risk of that threat materialising, with the result that their application for annulment of that provision for infringement of the principle of proportionality was not premature.
The Commission disputes that argument.
–
Findings of the Court
The fourth part of the fourth ground of appeal concerns the General Court’s alleged error of law in rejecting as inadmissible the argument alleging that the amount of the daily penalty payments provided for in Article 2 of the decision at issue was disproportionate.
As the Court of Justice has held, the fixing of periodic penalty payments under Article 24 of Regulation No 1/2003 necessarily involves two stages. By its first decision, adopted on the basis of Article 24(1) of that regulation, the Commission imposes a periodic penalty payment. Since that decision does not determine the total amount of the periodic penalty payment, it cannot be enforced. This amount can be definitively fixed only in a new decision, subsequently adopted on the basis of Article 24(2) of that regulation (see, to that effect, judgment of 21 September 1989, Hoechst v Commission,
46/87 and 227/88
,
EU:C:1989:337
, paragraph
).
Therefore, the General Court did not err in law, first of all, in holding in paragraphs 155 and 156 of the judgment under appeal that, since it constitutes only a stage in the procedure at the end of which the Commission may possibly adopt a decision which definitively fixes the total amount of the periodic penalty payment and can thus be enforced, the decision referred to in Article 24(1) of Regulation No 1/2003 represents a preliminary step in the procedure and, consequently, does not produce binding legal effects. Next, after noting that the decision at issue was that imposing a periodic penalty payment, within the meaning of that provision, which, moreover, is not disputed by the appellants, the General Court was entitled to conclude, in paragraphs 157 and 158 of that judgment, that Article 2 of that decision did not produce binding legal effects.
The General Court was therefore also entitled to conclude, finally, in paragraph 159 of that judgment, that the appellants’ argument that the amount of the periodic penalty payment provided for in that article was disproportionate did not concern a challengeable act and, therefore, was inadmissible. As the Court of Justice has consistently held, it is, in principle, acts which definitively determine the position of the institutions, bodies, offices or agencies of the European Union upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge, and not intermediate measures whose purpose is to prepare for the definitive decision (judgment of 25 June 2020, SatCen v KF,
C‑14/19 P
,
EU:C:2020:492
, paragraph
and the case-law cited).
In those circumstances, the fourth part of the fourth ground of appeal must be rejected as unfounded and, accordingly, the fourth ground of appeal must be rejected in its entirety.
The fifth ground of appeal, alleging misapplication of the rules governing the burden of proof
Arguments of the parties
By their fifth ground of appeal, the appellants complain that the General Court misapplied the rules governing the burden of proof relating to infringements of Article 102 TFEU, by rejecting their plea alleging undue reversal of that burden.
First, the appellants dispute the General Court’s conclusions, in paragraphs 173 and 174 of the judgment under appeal, that the Commission was not seeking to audit their accounts but rather to secure the necessary information so as to take account of the criticisms raised in their response to the statement of objections, and that, in so doing, the Commission was not asking the appellants to undertake tasks on its behalf. In that regard, the appellants claim that the information requested was neither relevant nor necessary and that the General Court failed to answer whether, by the decision at issue, the Commission required them to complete tasks which belong to the building of a case and, therefore, fall within the competence of that institution. The appellants maintain that, by asking them to verify all of their accounting data entries, that decision effectively ‘outsourced’ to them the building of a new case, even though it was not necessary for the Commission to address their arguments.
Secondly, the appellants submit that the General Court’s finding, in paragraph 175 of the judgment under appeal, that, by that decision, the Commission merely asked them to produce documents which corroborate their own assertion that they had relied on the relevant case-law and on the guidance of that institution, lacks adequate reasoning, and they reiterate that, by that decision, the Commission asked them to prove that they had acted in accordance with the law, which constitutes an ‘impermissible’ reversal of the burden of proof.
The Commission disputes that argument.
Findings of the Court
By their fifth ground of appeal, the appellants complain that the General Court wrongly rejected the fourth plea in law, alleging reversal of the burden of proof, in that the Commission required them to complete tasks which fall within its competence.
As regards, in the first place, the arguments relied on to challenge paragraphs 173 and 174 of the judgment under appeal, it must be pointed out, first, that those paragraphs refer to the analysis carried out by the General Court, respectively in paragraphs 106 and 107 of the judgment under appeal and paragraphs 138 to 140 thereof, when examining the first and second pleas relating, respectively, to whether the information requested by the decision at issue was necessary and proportionate, an analysis which the appellants have not succeeded in challenging by their third and fourth grounds of appeal. Secondly, it should be noted that those arguments are based, in essence, on the same considerations as those which were set out and rejected when examining the third part of the third ground of appeal and the third part of the fourth ground of appeal. Those arguments must therefore also be rejected as unfounded.
As regards, in the second place, the line of argument alleging failure to state reasons for the conclusion, in paragraph 175 of the judgment under appeal, that the Commission did not ask the appellants to prove that they had acted in accordance with the law, it should be noted that, by that line of argument, the appellants are in fact seeking to call into question the General Court’s finding as regards the content of the decision at issue, without, however, alleging any distortion thereof. They merely reiterate the arguments put forward in their fourth plea at first instance, based on an interpretation of that decision which was expressly rejected by the General Court. Consequently, in accordance with the case-law referred to in paragraphs 42 to 45 above, that line of argument must be rejected as manifestly inadmissible.
In those circumstances, the fifth ground of appeal must be rejected as manifestly inadmissible in part and manifestly unfounded in part.
The sixth ground of appeal, relating to the assessment of the infringement of the right to avoid self-incrimination
Arguments of the parties
By their sixth ground of appeal, the appellants complain that the General Court erred in law and in fact, distorted the evidence relating thereto and failed to state reasons in its assessment of the fifth plea in law, alleging infringement of the right to avoid self-incrimination.
First of all, the appellants submit that paragraph 186 of the judgment under appeal, in which the General Court stated as a preliminary point that the appellants merely pleaded that infringement in an abstract manner, is vitiated by errors, as is apparent from the arguments which they had raised at first instance.
Next, the appellants submit that, for the same reasons as those set out in relation to paragraph 175 of that judgment, the General Court’s finding in paragraph 190 thereof, according to which the decision at issue did not require the appellants to undertake any assessment of such a kind as to lead them to admit that they acted in breach of Article 102 TFEU, is not adequately reasoned.
Finally, the appellants claim that the General Court’s conclusion, in paragraph 192 of the judgment under appeal, rejecting their argument that the decision at issue amounts to an infringement of the right to avoid self-incrimination because it compels them to provide documents that cannot be regarded as ‘already in existence’, is vitiated by errors of law and of fact.
In particular, the appellants claim that the General Court erred in law in its interpretation of the judgment of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission (
T‑446/05
,
EU:T:2010:165
, paragraph
), in concluding that a request for production of a document that cannot be regarded as ‘already in existence’ does not necessarily infringe the right to avoid self-incrimination, whereas that judgment just stated that the mere fact of having to answer purely factual questions cannot constitute a breach of the rights of defence or impair the right to a fair trial.
They also argue that paragraph 192 of the judgment under appeal is based on an error of fact, in so far as, by the decision at issue, the Commission required the appellants to provide information that could not be considered as consisting of facts or documents and to demonstrate that they had proactively taken measures to comply with the requirements of EU competition rules, a failure to do so suggesting that they had not complied with their obligation.
The Commission contends that, since the appellants merely referred the Court of Justice to the arguments presented before the General Court, the arguments relied on against paragraphs 186 and 192 of the judgment under appeal and set out in paragraphs 134 and 138 above must be rejected as inadmissible and the sixth ground of appeal must be rejected as unfounded as to the remainder. In their reply, the appellants contend that it is precisely that reference which means that those arguments are admissible.
Findings of the Court
By the sixth ground of appeal, the appellants submit that the General Court erred in fact and in law, distorted the evidence relating thereto and failed to state reasons in its assessment of the alleged infringement, by the Commission in the decision at issue, of the right to avoid self-incrimination.
As regards the admissibility of that ground of appeal, it is apparent from the case-law referred to in paragraphs 42 to 45 above that, in so far as the argument relating to paragraph 186 of the judgment under appeal is based only on arguments put forward at first instance, to which the appellants merely refer, that line of argument must be rejected as manifestly inadmissible. The same applies to the argument alleging an error of fact on the part of the General Court in paragraph 192 of the judgment under appeal, given that (i) that line of argument is based on the same considerations as those set out in paragraph 96 above, which are rejected as inadmissible in paragraph 107 above, and (ii) the appellants dispute the General Court’s finding as regards the content of the decision at issue without, however, alleging a distortion of that decision.
As regards the merits of the admissible part of that ground of appeal, it should be noted as a preliminary point that, under recital 23 of Regulation No 1/2003, when complying with a decision of the Commission, undertakings cannot be forced to admit that they have committed an infringement, but they are in any event obliged to answer factual questions and to provide documents, even if this information may be used to establish against them or against another undertaking the existence of an infringement.
That provision reproduces, in essence, the settled case-law of the Court of Justice, according to which the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to the Commission, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anticompetitive conduct. Although the Commission may not compel that undertaking to provide it with answers which might involve the admission on its part of the existence of an infringement which it was incumbent upon the Commission to prove, that undertaking cannot, however, evade requests for production of documents on the ground that, by complying with them, it would be required to give evidence against itself (see, to that effect, judgments of 18 October 1989, Orkem v Commission,
374/87
,
EU:C:1989:387
, paragraphs
,
and
, and of 29 June 2006, Commission v SGL Carbon,
C‑301/04 P
,
EU:C:2006:432
, paragraphs
to
and
).
However, as regards, first of all, the argument alleging failure to state reasons for the conclusion in paragraph 190 of the judgment under appeal that, by asking them to produce documents which corroborate their own assertion that they had relied on the relevant case-law and on the guidance of the Commission guidelines, the Court did not require the appellants to undertake any assessment of such a kind as to lead them to admit that they acted in breach of Article 102 TFEU, it should be pointed out that that argument is based on the same complaints as those raised in respect of paragraph 175 of that judgment and must therefore be rejected on the same grounds as those set out in paragraph 131 above.
In any event, it should be noted that the General Court stated to the requisite legal standard the reasons for the conclusion drawn in paragraph 190 of the judgment under appeal. First of all, the General Court recalled, in paragraphs 180, 182 and 183 of that judgment, the case-law cited in paragraph 143 above. Next, relying in particular on its own case-law, the General Court drew the conclusion, in paragraphs 184 and 185 of the judgment under appeal, that (i) it is for the EU judicature to determine, in the event of a dispute as to the scope of a question raised by a request for information, whether an answer from the undertaking to which the question is addressed is in fact equivalent to the admission of an infringement and (ii) answers that are purely factual cannot, as a rule, be regarded as capable of requiring the addressee to admit the existence of that infringement. It is therefore on the basis of the abovementioned case-law, which is moreover not disputed by the appellants, that the General Court was able to conclude, in paragraphs 187 and 190 of the judgment under appeal, that, in so far as the information requested by the decision at issue was of a purely factual nature, consisting inter alia of the request for the production of internal documents, the provision of that information did not require the appellants to undertake any assessment of such a kind as to lead them to admit that they acted in breach of Article 102 TFEU.
As regards, in the second place, the argument alleging that the General Court erred in law in paragraph 192 of the judgment under appeal, it must be pointed out that the General Court correctly interpreted the case-law arising from the judgment of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission (
T‑446/05
,
EU:T:2010:165
, paragraph
), in that, in so far as it rules out that the mere fact of being obliged to produce documents already in existence can infringe the rights of defence, that case-law cannot be interpreted,
a contrario
, as meaning that any request for the production of a document which cannot be regarded as ‘already in existence’ necessarily infringes those rights, in particular the right to avoid self-incrimination.
It is apparent from the case-law referred to in paragraph 143 above that it is only where an undertaking is compelled to provide answers which might involve the admission on its part of the existence of an infringement that that undertaking may evade the obligation to communicate all necessary information, within the meaning of the case-law cited in paragraphs 68 to 70 above. In the present case, the General Court held, without that conclusion being challenged by the appellants, that that was not the case, in so far as they had not put forward any concrete argument establishing that the fact that, in order to respond to the Commission’s questions, they would have to marshal the requested factual data in a document intended to facilitate the Commission’s understanding thereof was capable, in itself, of constituting an infringement of the right to avoid self-incrimination.
In those circumstances, the sixth ground of appeal must be rejected as manifestly inadmissible in part and manifestly unfounded in part.
Since all of the grounds of appeal have been rejected, the appeal must be dismissed in its entirety.
Costs
In accordance with the Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of the Rules of Procedure, which applies 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.
Since the Commission has applied for Qualcomm and Qualcomm Europe to pay the costs and they have been unsuccessful, the latter must be ordered to pay the costs of the appeal.

On those grounds, the Court (Eighth Chamber) hereby:

1.
Dismisses the appeal;

2.
Orders Qualcomm Inc. and Qualcomm Europe Inc. to pay the costs.

Wahl
Biltgen
Rossi
Delivered in open court in Luxembourg on 28 January 2021.
A. Calot Escobar
Registrar
N. Wahl
President of the Eighth Chamber
(
*1
)	Language of the case: English.