Judgment;Abstract — ECLI:EU:T:2026:276
Date: 2026-04-22
Language of the case: German

Summary’, a table summarising the various costs for which reimbursement was claimed by the applicants, indicating next to each of the four types of expense, namely travel costs, accommodation expenses, daily subsistence allowances and lawyers’ fees, the amount which the Commission agrees to reimburse. 53 It follows that the contested decision discloses in a clear, detailed and unequivocal fashion the reasoning followed by the Commission in such a way as to enable the applicants to ascertain the reasons for the measure and to enable the Court to exercise its power of review within the meaning of the case-law cited in paragraph 46 above, with the result that it is sufficiently reasoned and therefore complies with the requirements of the second paragraph of Article 296 TFEU. 54 In addition, it must be stated that it follows from the present action that the applicants were able to challenge the merits of the contested decision, and more particularly the refusal to reimburse to them the entirety of the lawyers’ fees claimed, which demonstrates that, even if they do not agree with them, they were able to understand the reasons underlying the Commission’s conclusions adopted in the contested decision. 55 No other argument put forward by the applicants is capable of calling into question the adequacy of the statement of reasons for the contested decision. 56 As regards, in the first place, the complaint based on the references made by the Commission in the contested decision to correspondence before the decision was adopted, it must be stated that, contrary to the applicants’ allegations, all the considerations which led the Commission to reject in part their request for reimbursement are set out clearly in the actual text of the contested decision, as is apparent from paragraphs 49 and 50 above. 57 In addition, the correspondence with the applicants prior to the adoption of the contested decision constitutes the context of that decision. In accordance with the case-law cited in paragraph 46 above, the correspondence may be taken into account in order to determine whether the Commission complied, in the present case, with its obligation to state reasons. 58 Therefore, the applicants cannot criticise the Commission for having referred, in the contested decision, to the earlier correspondence with them. 59 As regards, in the second place, the complaint alleging that the counter-scenario used by the Commission as a comparison in order to calculate the additional costs which could be reimbursed was incomprehensible and insufficiently reasoned, it must be stated that it is apparent from the contested decision that that counter-scenario is described as corresponding to the hypothesis that the inspection continued at the applicants’ premises. 60 In the contested decision, the Commission explains that it decided to reimburse to the applicants the costs incurred solely as a result of the continuation of the inspection at its premises in Brussels, but not the costs which they would have incurred in any event if the inspection had continued at their own premises. As regards the lawyers’ fees, the Commission states that those fees do not constitute such additional costs, since they would, in any event, have been incurred if the inspection had continued at the applicants’ premises. 61 It follows that, contrary to the applicants’ allegations, the description of that counter-scenario in the contested decision is sufficiently comprehensible and reasoned. 62 In that regard, it is also important to note that such a counter-scenario is, by definition, hypothetical, which the applicants themselves acknowledge, since, in fact, the inspection continued at the Commission’s premises in Brussels. Therefore, the Commission cannot be required to define the ‘fair’ counter-scenario or to provide more concrete details regarding that scenario in the contested decision. 63 Lastly, it must be stated that the question of what the most plausible or ‘fair’ counter-scenario would be forms part of the merits of the contested decision and is therefore irrelevant in the context of a plea alleging a failure to state reasons, as is apparent from the case-law cited in paragraph 47 above. Therefore, the applicants’ arguments seeking to demonstrate that they could have comprehensively overseen the inspection internally if it had continued at their premises or that the counter-scenario used by the Commission was incorrect or was the most advantageous counter-scenario for that institution are, since they concern the merits of the contested decision, and not its statement of reasons, ineffective in the context of the present plea. 64 In the light of the foregoing considerations, the second plea must be rejected, there being no need to adopt the measure of organisation of procedure under Article 89(3)(d) of the Rules of Procedure of the General Court requested by the applicants. The first plea: the refusal to reimburse the additional costs was unlawful because the continuation of the inspection at the Commission’s premises in Brussels was disproportionate 65 The applicants submit that, by deciding to continue the inspection at its premises in Brussels, the Commission infringed the principle of proportionality enshrined in Article 5(4) TEU. According to the applicants, continuing the inspection in Brussels neither contributed to the effectiveness of the inspection nor prevented excessive interference with the operations of Red Bull. Moreover, such continuation was prolonged excessively and was made necessary only by the fact that the Commission requested data en masse, without any prior examination of its relevance or prior sorting, of a total, and disproportionate, volume of 16.6 terabytes. According to the applicants, the continuation of the inspection at the Commission’s premises in Brussels was disproportionate in itself and gave rise to the high costs for which they claim reimbursement. From that, the applicants infer that the Commission’s refusal to reimburse the entirety of the costs claimed is therefore unlawful. 66 The Commission disputes the applicants’ arguments and contends that the first ground of appeal is inadmissible. 67 In that regard, it should be recalled that, according to settled case-law, the principle of proportionality requires that acts of EU institutions do not exceed the limits of what is appropriate and necessary to attain the end in view; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgments of 8 March 2007, France Télécom v Commission, T‑339/04, EU:T:2007:80, paragraph 117, and of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 22). 68 In the present case, it must be stated that the arguments put forward by the applicants in support of their first plea are directed against the Commission’s decision to continue the inspection at its premises, and not against the contested decision in the present proceedings. 69 Therefore, while the applicants complain that the continuation of the inspection at the Commission’s premises in Brussels was, in their view, disproportionate, in no way do they explain how the contested decision itself is disproportionate. In other words, even though the first plea is based on an alleged infringement of the principle of proportionality, the arguments put forward in that regard by the applicants do not seek to demonstrate that the contested decision exceeds the limits of what was appropriate and necessary to attain the objective pursued by its adoption, namely to determine the additional costs incurred solely as a result of the continuation of the inspection at the Commission’s premises in Brussels, reimbursement of which by the Commission would therefore justified. 70 Therefore, the first plea must be rejected as being ineffective, there being no need to rule on whether it is admissible, which the Commission disputes, or to adopt, under Article 89(3)(d) of the Rules of Procedure, the measure of organisation of procedure requested by the applicants. The third ground of appeal: an error of law in the interpretation of the concept of ‘additional costs’ within the meaning of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P), and an error of assessment 71 The third ground of appeal alleges, in essence, that the Commission erred in law in its interpretation of the concept of ‘additional costs’ within the meaning of paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), and made an error of assessment which resulted in the Commission refusing to reimburse in full the lawyers’ fees claimed by the applicants. 72 As regards the alleged error of law, the applicants submit that the Commission’s position – that lawyers’ fees do not, in principle, constitute ‘additional costs’ within the meaning of paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), on the ground that they would also have been incurred if the inspection had continued at the applicants’ premises – is unfounded. In the applicants’ view, such an interpretation of the concept of ‘additional costs’ is too restrictive and is at odds with the judgment referred to above. 73 As regards the alleged error of assessment, the applicants explain that continuing the inspection at the Commission’s premises caused them considerable difficulties, since they do not have a place of business in Brussels and they were unable to send their key staff there for a long period. Given those difficulties, the applicants were forced to instruct an additional law firm which had offices there, in addition to the Austrian law firm which generally assists them. Using those additional lawyers resulted in additional costs which could have been avoided if the inspection had continued at the applicants’ premises, since, in that case, such an inspection would not have lasted for so long. According to the applicants, the fees charged by those lawyers therefore constitute, in their entirety, ‘additional costs’. 74 Indeed, the applicants argue that if the inspection had continued at their premises, they would have had at their disposal the necessary multilingual staff with sufficient legal training in order to oversee it, who they were unable to call upon in Brussels. Those members of staff could have been assigned to the inspection on a rota basis, such that the applicants would have been able to have full internal oversight of the inspection and they would have needed to call on lawyers only on an ad hoc basis. 75 The applicants add lastly, in the alternative, that if their line of argument is not successful, it will in any event be necessary to find that the costs incurred in instructing the second law firm constitute ‘additional costs’, since the second law firm would not have been instructed if the inspection had continued at their premises. 76 The Commission disputes the applicants’ arguments. 77 In that regard, it is apparent from the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571) that the possibility for the Commission to continue its examination of the books and other records related to the business of an undertaking pursuant to Article 20(2)(b) of Regulation No 1/2003 at its premises in Brussels is subject to such continuation not giving rise to any infringement of the rights of the defence and not constituting an additional encroachment on the rights of the undertakings concerned compared with that inherent in an inspection at their premises. Such an encroachment would have to be found if the continuation of that examination at the Commission’s premises in Brussels gave rise to additional costs for the undertaking under inspection solely as a result of that continuation. It follows that, where that continuation is capable of giving rise to such additional costs, the Commission may undertake that continuation only where it agrees to reimburse those costs when the undertaking concerned presents to it a duly reasoned request to that effect. 78 In the present case, the question which arises is whether, by refusing to reimburse to the applicants the entirety of the lawyers’ fees incurred by them for the services carried out in connection with the inspection carried out at the Commission’s premises in Brussels, the Commission made an error of law or an error of assessment, as the applicants maintain. 79 As regards the alleged error of law, it must be recalled that, in the contested decision, read in the light of the earlier correspondence with the applicants, the Commission interpreted the concept of ‘additional costs’ within the meaning of paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), as not including, in principle, lawyers’ fees related to the continuation of the inspection at its premises, since, in its view, they are costs which the undertaking concerned would have incurred in any event if the inspection had continued at its premises. 80 In that regard, it is apparent from paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571) (see paragraph 77 above), that two criteria must be met in order for certain costs to be able to be classified as ‘additional costs incurred solely as a result of [the continuation of an inspection at the Commission’s premises in Brussels]’. 81 First, it is necessary to ascertain whether the costs for which reimbursement is claimed by the applicants may be classified as ‘additional’ in the light of that case-law. 82 It must be inferred from the use of the adjective ‘additional’ that the costs referred to are those additional to the earlier detailed and factual costs incurred in respect of the inspection at the premises of the undertaking concerned. Those costs referred to must therefore be costs which are additional to the costs incurred in a situation where an inspection takes place at the premises of the undertaking concerned. 83 In addition, contrary to the applicants’ assertions, if the Court of Justice intended to refer to the Commission being required to reimburse the entirety of the costs incurred by the undertaking as a result of the decision to continue the inspection at its premises, it would not have used, in paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), the adjective ‘additional’, which presupposes that what is involved are costs other than the costs which the undertaking would have incurred had the inspection continued at its premises. 84 It should also be noted that the adjective ‘additional’ used by the Court does not require proof that the costs incurred are disproportionate or excessive, but solely that such costs are additional to the costs which would have been incurred if the inspection had continued at the premises of the undertaking concerned. 85 Second, it is necessary to ascertain whether the costs for which the applicants claim reimbursement may be classified as ‘arising solely from’ the inspection being continued at the Commission’s premises, once again in the light of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571). 86 It must be inferred from the use of the expression ‘solely as a result of’ in paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), that an exclusive causal link is required between (i) the costs referred to and (ii) the inspection being continued at the Commission’s premises, which, moreover, the applicants acknowledge in the reply. 87 It follows that the costs referred to are those which are incurred solely because of the inspection being continued at the Commission’s premises, with the result that the costs which would in any event have been incurred had the inspection continued at the premises of the undertaking concerned are excluded. 88 As regards, more specifically, lawyers’ fees, it follows from the foregoing that only ‘additional’ fees, which were not incurred in a situation where an inspection takes place at the premises of the undertaking concerned and which are exclusively related to the inspection being continued at the Commission’s premises may be classified as ‘additional costs’ within the meaning of paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571). 89 In that regard, it must be held that the choice of calling upon lawyers during an inspection carried out by the Commission under Article 20(4) of Regulation No 1/2003 forms part of the defence strategy of the undertaking concerned, since that provision does not require it to be assisted by lawyers (see, to that effect, judgment of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission, T‑357/06, EU:T:2012:488, paragraph 226). It follows that if the undertaking concerned decides to instruct lawyers to assist it during such an inspection, the fact that the inspection continues at the Commission’s premises does not alter the costs relating to lawyers’ fees. For such an undertaking which had decided to be assisted by lawyers during such an inspection, if the Commission decides to continue that inspection at its premises, the lawyers’ fees associated with such continuation do not generally constitute additional costs, since the services to be provided by the lawyers are, in principle, the same, regardless of where the inspection takes place. Since those services would also have been provided if the inspection had continued at the premises of the undertaking concerned, there is, in principle, no exclusive causal link between the lawyers’ fees relating to that inspection at the undertaking’s premises and the continuation of that inspection at the Commission’s premises. 90 In the present case, since the applicants chose to be assisted by lawyers during the inspection carried out at their premises, it has not been established that there is an exclusive causal link between the inspection being continued at the Commission’s premises in Brussels and the fees of the lawyers who assisted them during that inspection. 91 Therefore, in the light of the defence strategy put in place by the applicants, the Commission’s interpretation of the concept of ‘additional costs’ – as, in principle, excluding lawyers’ fees charged for services carried out in connection with an inspection being continued at the Commission’s premises, since those fees would also have been incurred if the inspection had continued at the applicants’ premises – is neither unfounded nor contrary to the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), contrary to the applicants’ allegations. 92 Furthermore, it must be stated that, contrary to the applicants’ assertions, the Commission’s interpretation of the concept of ‘additional costs’ is also not restrictive, in particular in the light of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571). 93 It is apparent from the contested decision, read in the light of the correspondence exchanged with the applicants, that the Commission does not categorically rule out the possibility that certain lawyers’ fees could be regarded as ‘additional costs’. The Commission merely requires the undertaking concerned to demonstrate that the lawyers’ services covered by the fees for which it seeks reimbursement would not have been provided if the inspection had continued at the premises of that undertaking, which is not unreasonable. It is apparent from paragraph 90 of the judgment of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571), that the Commission is to reimburse the additional costs where the undertaking concerned makes a ‘duly reasoned’ request to that effect. 94 It follows from the foregoing that the applicants have failed to demonstrate that the Commission’s interpretation, in the contested decision, of the concept of ‘additional costs’ constituted an error of law. 95 As regards the alleged error of assessment, it should be noted at the outset that the applicants requested the Commission, during the procedure which preceded the adoption of the contested decision, only to reimburse in full the lawyers’ fees incurred in connection with the inspection being continued at the Commission’s premises, relying on the scenario of full internal oversight of the inspection if that inspection had continued at their premises by their multilingual staff who were sufficiently legally trained. Since, according to the applicants, no lawyers’ fees would have been incurred in that scenario as a result of that full in-house oversight, they maintain that the lawyers’ fees relating to the continuation of the inspection at the Commission’s premises in Brussels constitute, in their entirety, ‘additional costs’, which the Commission must reimburse. 96 In that regard, first of all, it must be stated that the scenario of full internal oversight of the inspection is not how the inspection at the applicants’ premises, to which the applicants were subject in March 2023, unfolded, where they were continuously assisted by lawyers in Fuschl am See, Amsterdam and Paris. In that context, as the Commission correctly points out, the applicants have not validly demonstrated that, having been assisted by lawyers throughout the duration of the inspection at their premises, they would have been in a position to organise themselves so as to be able to ensure complete internal oversight of the inspection if it had continued at their premises. 97 Next, while the applicants maintain that their employees would have been able independently to oversee the inspection if it had continued at their premises, they provide no explanation whatsoever for why they did not rely on those employees actually to oversee the inspection at the Commission’s premises in Brussels, whether in person or remotely, in particular on the basis of a rota. It must be stated that, although some of the applicants’ employees were present in Brussels, they did not even go to the Commission’s premises. That fact tends to confirm the Commission’s position that full internal oversight of the inspection was implausible, such that the applicants would have requested lawyers to be present if that inspection had continued at their premises. 98 Lastly, it should also be noted that the applicants themselves admitted on a number of occasions, both in the correspondence with the Commission prior to the adoption of the contested decision and in the context of the present proceedings, that they would have called upon lawyers, at least from time to time, if the inspection had continued at their premises. The applicants cannot therefore, without contradicting themselves, claim that they would have ensured full oversight of the inspection, completely doing without the assistance of lawyers, if that inspection had continued at their premises. 99 Therefore, the Commission made no error of assessment when it concluded in the contested decision, read in the light of the earlier correspondence with the applicants, that the premiss of full internal oversight of the inspection if the inspection had continued at the applicants’ premises, on which the applicants rely in order to claim reimbursement in full of the lawyers’ fees related to the inspection being continued at the Commission’s premises, was implausible and rejected it. It should also be observed that the Commission has never claimed that the lawyers would have provided the same degree of assistance throughout the inspection if it had continued at the applicants’ premises. The Commission merely concluded, correctly, that, in such a situation, the applicants would have continued, at least to some extent, to be assisted by lawyers. 100 Finally, as regards the argument put forward in the alternative by the applicants that the costs incurred as a result of instructing the second law firm ought, at the very least, to be regarded as ‘additional costs’, it must be stated that, during the procedure which preceded the adoption of the contested decision, the applicants never attempted to demonstrate that only certain lawyers’ fees could be reimbursed and never claimed reimbursement in part of such fees. That was so, even though the Commission had expressly asked them by letter, in order to assess whether the lawyers’ fees for which reimbursement was claimed could in part be regarded as ‘additional costs’, to provide ‘a full description of the lawyers’ fees, including the names of the lawyers, the hours worked, the hourly rate applicable, a description of the advice provided and a statement of reasons why such advice was provided solely for the purpose of continuing the inspection and not for each on-site inspection’. The applicants, which have always maintained their position seeking solely reimbursement in full of the lawyers’ fees claimed, have never provided the Commission with such a description. 101 In those circumstances, the Commission cannot be criticised for having failed to grant the applicants, in the contested decision, reimbursement in part of their lawyers’ fees, such as those incurred to instruct a second law firm based in Brussels. 102 It should also be noted that, during the present proceedings, in response to both written and oral questions from the Court, the applicants expressly confirmed that they were seeking solely reimbursement in full of the lawyers’ fees claimed from the Commission and could not be satisfied with reimbursement of those fees in part. 103 It follows from the foregoing that the argument put forward in the alternative by the applicants, whereby they claim that some of the lawyers’ fees which they incurred ought, at the very least, to be regarded as ‘additional costs’, must be held to be unfounded and must be rejected, there being no need to rule on whether that argument is admissible, which the Commission disputes. 104 In the light of the foregoing considerations, the third plea must be rejected and the action in its entirety must be dismissed. Costs 105 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, LE TRIBUNAL (First Chamber, sitting with five Judges) hereby: 1. Dismisses the action; 2. Orders Red Bull GmbH, Red Bull France SASU and Red Bull Nederland BV to pay the costs. Buttigieg Schwarcz Kancheva Tichy-Fisslberger Bestagno Delivered in open court in Luxembourg on 22 April 2026. [Signatures] * Language of the case: German.