Judgment — ECLI:EU:T:2014:991
Date: 2014-11-25
Language of the case: French
Court formation: Fourth Chamber
Subject matter: Competition
Procedure: Action for annulment - unfounded
Origin: France

summary of the case, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action. This information may also be made available to the competition authorities of the other Member States. At the request of the Commission, the acting competition authority shall make available to the Commission other documents it holds which are necessary for the assessment of the case. The information supplied to the Commission may be made available to the competition authorities of the other Member States. National competition authorities may also exchange between themselves information necessary for the assessment of a case that they are dealing with under Article [101] or Article [102 TFEU].’ 34 Article 11(6) of Regulation No 1/2003 provides: ‘[t]he initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles [101] and [102 TFEU]. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.’ 35 Admittedly, it is apparent from reading these two provisions together that the receipt by the Commission of the draft decisions from the national competition authority, pursuant to Article 11(4) of Regulation No 1/2003, can provide the opportunity for the Commission to exercise the right and the discretionary power conferred on it by Article 11(6) of that regulation to relieve a competition authority of a Member State of its competence to apply Articles 101 TFEU and 102 TFEU in a specific case. 36 It does not, however, follow that if the Commission does not share the assessment relating to the application of Articles 101 TFEU and 102 TFEU set out in the draft decision notified by the competition authority of a Member State, or if the Commission has doubts in that regard, it is necessarily bound to initiate proceedings under Article 11(6) of Regulation No 1/2003, or that the non-initiation of proceedings precludes it from conducting its own investigation at a later stage in order to lead to a result other than that arrived at by the competition authority. 37 It should be recalled that, according to settled case-law, the Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of the principles laid down in Articles 101 TFEU and 102 TFEU, is responsible for defining and implementing the orientation of European Union competition policy. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and, for that purpose, it has discretionary power (see judgments of 4 March 1999 in Ufex and Others v Commission, C‑119/97 P, ECR, EU:C:1999:116, paragraph 88, and of 17 May 2001 in IECC v Commission, C‑449/98 P, ECR, EU:C:2001:275, paragraph 36). The Court considers that the same is true for the application of Article 11(6) of Regulation No 1/2003. 38 This interpretation is moreover supported by the policy line which the Commission made clear in paragraph 54(b) of its Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43), according to which such intervention is envisaged only when a notified draft decision is obviously in conflict with consolidated case-law. It is not, therefore, to be inferred from that notice that the Commission intended to bind itself to intervening in all cases in which it has doubts as to the conformity of a notified draft decision with Articles 101 TFEU and 102 TFEU. 39 Thus, non-intervention by the Commission under Article 11(6) of Regulation No 1/2003 cannot be regarded as acceptance of the merits of the authority’s decision under Article 102 TFEU. 40 In consequence, no conclusions on the appropriateness of an investigation conducted by the Commission can be drawn from the fact that the latter did not exercise the power conferred on it by Article 11(6) of Regulation No 1/2003 following notification of a draft decision of a national competition authority covering a similar subject-matter. 41 In the light of the foregoing, the criticisms levelled at the appropriateness of the contested decisions are not well founded and, therefore, the first part of the plea in law must be rejected, without it being necessary to grant the applicant’s request for a measure of organisation of procedure, referred to in paragraph 32 above. Second part of the plea in law concerning the necessity of the contested decisions 42 The applicant disputes the necessity of the contested decisions on two counts. First, it disputes the necessity of the contested decisions on the grounds that there was a less onerous alternative to the adoption of an inspection measure, that being the examination of the file in the procedure before the authority, and points out that, by failing to conduct such an examination, the Commission failed to fulfil its obligation to examine carefully and impartially all the relevant aspects of the individual case, thereby also infringing the principle of ‘good administration’. Second, the applicant disputes the necessity of the inspection measure in so far as it concerned information which was already in the Commission’s possession or which could have been in the Commission’s possession without having recourse to the inspection. – The complaint alleging the existence of a less onerous alternative to the contested decisions and breach of the principle of good administration 43 In its reply, the applicant claims ‘that there was a less onerous way for the Commission to attain its objective (relying on the national procedure), which the Commission disregarded, [which would] naturally [have been] without prejudice to the Commission’s power, once such information had been gathered and examined, to decide, with full knowledge of the matter before it, whether an inspection was still proportionate’. As regards the possibility for the Commission of obtaining the authority’s file, besides Article 11(4) of Regulation No 1/2003, the applicant also refers to Articles 18(6) and 20(4) of that regulation. 44 The Commission contends that this line of argument should be rejected and submits that pleading Articles 18(6) and 20(4) of Regulation No 1/2003 at the stage of the reply is contrary to Article 48 of the Rules of Procedure and must, therefore, be ruled inadmissible. 45 In the first place, as regards the admissibility of this line of argument put forward at the reply stage, it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the original application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (see judgment of 14 March 2007 in Aluminium Silicon Mill Products v Council, T‑107/04, ECR, EU:T:2007:85, paragraph 60 and the case-law cited). 46 In the present case, it should be noted that the application contains lengthy explanations concerning the existence of the authority’s decision, the fact that the decision should have been taken into account under the principle of ‘good administration’ and the disproportionate nature of the contested decisions, because of the very existence of that decision. It follows that ever since the stage of the application the applicant has disputed the proportionality of the contested decisions in its different aspects, on the basis of the existence of the authority’s decision. Consequently, the arguments in the reply calling in question the necessity of the inspection, on the grounds that it was possible for the Commission to consult the file in the procedure before the authority, including the reference to Articles 18(6) and 20(4) of Regulation No 1/2003, constitute the expansion of a plea raised in the application (see, to that effect, judgment of 18 November 2004 in Ferriere Nord v Commission, T‑176/01, ECR, EU:T:2004:336, paragraph 136 and the case-law cited). 47 Furthermore, it is only upon reading the defence that the applicant could have become aware of the possibility that the Commission might not have requested disclosure of the file in the procedure before the authority before the adoption of the contested decisions. In its defence, the Commission emphasises that, when it adopted the contested decisions, it was not in possession of the material from the file in the procedure before the authority and that it was not required to obtain such information in the context of its cooperation with the authority. Therefore, the arguments set out in the reply must also be considered to be based on matters of fact which came to light in the course of the procedure and are also, to that extent, consistent with Article 48 of the Rules of Procedure. 48 In the second place, and on the merits, it must be determined whether disclosure to the Commission of the file in the procedure before the authority could have been a less onerous alternative, but as efficient as resorting to an inspection, capable of achieving the Commission’s legitimate aim of obtaining additional information about the alleged infractions it was investigating. 49 Emphasis should also be placed on the importance of that examination in the light of the duty of diligence to which the applicant refers in its pleadings under the cloak of the principle of ‘good administration’, which entails the obligation for the Commission to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and of 16 September 2013 in ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 84 and case-law cited). 50 First, it must be observed that comparison of the contested decisions with that of the authority reveals strong similarity in terms of the kind of conduct forming the subject-matter of the respective investigations, that conduct being practices consisting in limiting access to networks (‘tromboning’, restricting route propagation), charging for access to those networks (billing the allocation of additional capacity, restrictive traffic ratios and margin squeezing) and discrimination in favour of content offered by the applicant. Thus, the Commission’s investigation differs from that carried out by the authority mainly because of its wider geographic and temporal scope. 51 Second, as noted in paragraph 33 above, it was open to the Commission, after being informed pursuant to Article 11(4) of Regulation No 1/2003, to ask the authority to disclose the information contained in its file. 52 In that regard, it should be noted that, pursuant to Article 12(1) of Regulation No 1/2003, the Commission would, in principle, have been entitled to use the information contained in the authority’s file as evidence. Although the second paragraph of that article provides that ‘[i]nformation exchanged shall only be used in evidence for the purpose of applying Article [101] or Article [102 TFEU] and in respect of the subject-matter for which it was collected by the transmitting authority …’, the fact remains that the alleged infringements to which the Commission refers are essentially the same and differ from those concerned by the authority’s decision only in terms of their wider geographic and temporal scope. Thus, the proviso set out in Article 12(2) of Regulation No 1/2003 would not have prevented the Commission from using the documents disclosed by the authority. 53 Third, it should be noted that observance by the Commission of the duty of diligence was all the more important in the circumstances of this case, because the case-law confers discretion on it in implementing Article 20(4) of Regulation No 1/2003, in order to safeguard the effectiveness of that provision (see, to that effect and by analogy, order of 17 November 2005 in Minoan Lines v Commission, C‑121/04 P, EU:C:2005:695, paragraph 36). In such circumstances, observance of the guarantees conferred by the legal order of the Union in administrative procedures, including the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case, is of all the more fundamental importance (see, to that effect, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, ECR, EU:T:2003:245, paragraph 404 and the case-law cited, and ATC and Others v Commission, paragraph 49 above, EU:T:2013:451, paragraph 84). 54 Fourth and last, in the present case, compliance with that obligation is all the more important because the exercise of the powers of inspection conferred on the Commission by Article 20(4) of Regulation No 1/2003 vis-à-vis an undertaking constitutes a clear interference with the latter’s right to respect for its privacy, private premises and correspondence (see, to that effect, order of 30 March 2006 in Strintzis Lines Shipping v Commission, C‑110/04 P, EU:C:2006:211, paragraphs 32 and 33). 55 In this case, it may indeed appear at the very least unfortunate that the Commission should at the outset have opted for an inspection without first examining the information obtained by the authority in relation to similar conduct. 56 The fact remains that the inspection decisions are not thereby vitiated by illegality. In the circumstances of the present case and as the Commission rightly pointed out, examination of the file in the authority’s possession was not an alternative to an inspection, since the authority had not carried out any inspection at the applicant’s premises and its decision had therefore been taken only on the sole basis of the information voluntarily provided by the applicant. 57 Thus, in the present case, the necessity of an appropriate effective inquiry was capable of justifying recourse to an inspection, for that was the only measure enabling the Commission to collect information which, by its very nature, had perhaps not been voluntarily produced by the applicant in the course of the procedure before the authority. 58 In that regard, the Commission points out that one of the aims of the inspection was to look for documents concerning the applicant’s business strategy that might reveal the existence of an intention or plan to eliminate competition. 59 Contrary to what the applicant submits, such information is potentially relevant to the Commission’s examination of the suspected infringements. 60 It is true, as the applicant recalls, that the concept of abuse is objective and need not involve any intention to cause harm (judgment of 12 December 2000 in Aéroports de Paris v Commission, T‑128/98, ECR, EU:T:2000:290, paragraph 173). 61 That does not, however, lead to the conclusion that information concerning the applicant’s intention when it adopted its business strategy is irrelevant. As the Court of Justice has made clear, when the Commission undertakes an assessment of the conduct of an undertaking in a dominant position, that assessment being an essential prerequisite for a finding that there is an abuse of such a position, the Commission is necessarily required to assess the business strategy pursued by that undertaking. For that purpose, it is clearly legitimate for the Commission to refer to subjective factors, namely, the motives underlying the business strategy in question. Therefore, although the Commission is under no obligation to establish the existence of an anti-competitive intention on the part of the undertaking in a dominant position in order to render Article 102 TFEU applicable, such intention may nevertheless be taken into account (judgment of 19 April 2012 in Tomra Systems and Others v Commission, C‑549/10 P, ECR, EU:C:2012:221, paragraphs 17 to 21). 62 For the same reasons, it is necessary to reject the applicant’s arguments disputing the need for the inspection on the grounds that the information sought was of a public nature or was already in the Commission’s possession owing to the answers given to its previous requests. 63 Even if, as the applicant submits, all the alleged infringements referred to in the contested decisions stem from the applicant’s ‘peering’ policy and the specific features of that policy are of a public nature, the same cannot be said of the possible anti-competitive motives that might have led to the adoption of that policy. The information disclosing such motives being inherently secret, it is unlikely to be apparent from the public version of the applicant’s policy and it is far from certain that it was referred to in the answers to the requests for information sent by the Commission. 64 Accordingly, in view of all of the foregoing, it must be concluded that, when the contested decisions were adopted, it was reasonable for the Commission to consider that there was no less onerous alternative to having recourse to an inspection. It follows that the Commission did not infringe the principle of proportionality in that respect or, given the circumstances of the present case, its duty of diligence. 65 The first complaint must therefore be rejected. – The complaint alleging that the Commission did not seek new information 66 The applicant claims that the Commission can legitimately seek only information additional to that already in its possession. It argues that the Commission undertook research which could lead only to documents which already formed part of the file in its possession or the file before the authority, to which it could gain access. In support of that line of argument, the applicant submits that the Commission, in the course of its research on the computers seized, used key words and confiscated documents linked to the applicant’s answers to the authority’s questions, to the earlier requests for information from the Commission and to the commitment given before the authority. It also points out that the only employee who was formally heard by the Commission had already been heard by the authority. 67 Thus, in essence, the applicant disputes the necessity of the contested decisions on the ground that the inspection concerned information which was already in the Commission’s possession or which could have been in the Commission’s possession if it had examined the authority’s file. 68 In accordance with the case-law mentioned in paragraph 24 above, it is, in principle, 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 and even if it already has some indicia, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to order further investigations enabling it better to define the scope of the infringement or to determine its duration. 69 First, it should be observed that the applicant neither claims nor establishes that the inspection exclusively or substantially involved searching for information linked to the procedure before the authority and to its answers to the requests for information. In this respect, the applicant merely gives a few examples of keywords and documents seized, even though the inspection lasted almost four days and covered various premises. 70 Second, for reasons similar to those set out in paragraphs 55 to 61 above, it must be concluded that it was reasonable for the Commission to search for information which, although linked to the procedure before the authority or to the answers provided by the applicant to the Commission’s requests for information, was unlikely, on account of its nature, to be disclosed by the applicant, particularly because it might signal the existence of an intention or a plan to eliminate competition. 71 Accordingly, the Court must reject this complaint and, consequently, the second part of the first plea in law. 72 Furthermore, in accordance with the case-law cited in paragraph 22 above, a measure, even if appropriate and necessary in order to achieve the aims legitimately pursued, must not cause disadvantages disproportionate to those aims. More particularly, it follows from the case-law cited in paragraph 23 above that, in the case of a decision ordering an inspection, observance of the principle of proportionality presupposes that the intended measures do not constitute, in relation to the aims pursued by the inspection in question, a disproportionate and intolerable interference. 73 In the present case, it is not apparent from the applicant’s pleadings that it disputes the extent of the disadvantages caused by the inspection carried out at its premises. At all events, the scope of that inspection and the disadvantages it may have caused, as noted in the application, namely, that it lasted four days, covered four sites, and involved visits to 18 offices, the seizure of 11 computers and 5 smartphones, the hearing of one person and the analysis and indexation of 34 staff mailboxes, and also the inspection of hard drive copy images at the Commission’s offices in the presence of the applicant’s representatives, cannot, in this instance, be considered disproportionate in view of the alleged infringements investigated by the Commission. 74 The first plea in law must therefore be rejected in its entirety. Second plea in law alleging that the inspection was arbitrary 75 In the context of the second plea in law, the applicant argues that it is for the Court to ensure that inspection decisions are not arbitrary and that that review must involve checking that the indicia in the Commission’s possession before adoption of the inspection decision were sufficiently reliable and detailed. It also points out that it is not required to submit evidence casting doubt on the reliability of the indicia in the Commission’s possession in order to have the Court examine them. In the present case, the applicant considers that both the fact that the contested decisions are identical to the decision of the authority and the Commission’s conduct during the investigation, using keywords linked to the procedure before the authority, indicate that the Commission was not in possession of reliable, detailed indicia before adopting the inspection measure. In the reply, the applicant claims that as early as the application stage, it asked the Court to review the indicia in the Commission’s possession. 76 In the first place, the Commission observes that the obligation imposed on it by Article 20(4) of Regulation No 1/2003 to specify the subject-matter and purpose of the inspection is described by the case-law as a fundamental requirement in order, in particular, to show that the proposed entry onto the premises of the undertakings concerned is justified. In the second place, the Commission considers that the applicant did not, in the application, ask the Court to order the production of the indicia the Commission had in its possession before the adoption of the contested decisions. It submits that any such request, when made at the stage of the reply, must be regarded as inadmissible. 77 As regards the response to be given to this plea in law, it should be borne in mind that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up to notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and on how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, to that effect, judgments of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 113 and the case-law cited, and of 8 July 2008 in AC-Treuhand v Commission, T‑99/04, ECR, EU:T:2008:256, paragraph 47). 78 The starting point for the preliminary investigation stage is the date on which the Commission, in exercise of the powers conferred on it by Articles 18 and 20 of Regulation No 1/2003, takes measures which involve the allegation of an infringement and have major repercussions on the situation of the undertakings under suspicion. It is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it (see, to that effect, AC-Treuhand v Commission, paragraph 77 above, EU:T:2008:256, paragraph 48 and the case-law cited). 79 However, the measures of inquiry adopted by the Commission during the preliminary investigation stage, in particular, the investigation measures and the requests for information, suggest, by their very nature, that an infringement has been committed and may have major repercussions on the situation of the undertakings under suspicion. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (judgment in AC-Treuhand v Commission, paragraph 77 above, EU:T:2008:256, paragraphs 50 and 51; see also, to that effect, judgments of 21 September 1989 in Hoechst v Commission, 46/87 and 227/88, ECR, EU:C:1989:337, paragraph 15, and in Elf Aquitaine v Commission, paragraph 77 above, EU:C:2011:620, paragraphs 116 and 117 and case-law cited). 80 In that respect, it must be recalled that the obligation under Article 20(4) of Regulation No 1/2003 to specify the subject-matter and purpose of the inspection constitutes a fundamental guarantee of the rights of defence of the undertakings concerned and, consequently, the scope of the duty to state the reasons for inspection decisions may not be limited by reference to considerations relating to the effectiveness of the investigation. Whilst it is indeed the case that the Commission is not required to communicate to the addressee of such a decision all the information at its disposal concerning the presumed infringements, or to delimit precisely the relevant market, or to set out the exact legal nature of the infringements, or to indicate the period during which those infringements were committed, it is obliged to state, as precisely as possible, the presumed facts that it intends to investigate, that is to say, what it is looking for and the matters to which the inspection must relate (see, to that effect, judgments in Hoechst v Commission, paragraph 79 above, EU:C:1989:337, paragraph 41; of 17 October 1989 in Dow Benelux v Commission, 85/87, ECR, EU:C:1989:379, paragraph 10; and in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 48). 81 In view of the foregoing, at the stage of the preliminary investigation the Commission cannot be required to indicate, besides the putative infringements it intends to investigate, the evidence, that is to say, the indicia leading it to consider that Article 102 TFEU has possibly been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the rights of defence of the undertaking concerned. 82 It cannot, however, be inferred from the foregoing that the Commission does not have to be in possession of information leading it to consider that Article 102 TFEU may have been infringed before the adoption of a decision under Article 20(4) of Regulation No 1/2003. 83 It should be recalled that the requirement of protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union (judgments in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 27; of 14 November 2012 in Nexans France and Nexans v Commission, T‑135/09, ECR, EU:T:2012:596, paragraph 40; and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, T‑140/09, EU:T:2012:597, paragraph 35). 84 With a view to observing that general principle, an inspection decision must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules (judgments in Nexans France and Nexans v Commission, paragraph 83 above, EU:T:2012:596, paragraph 43, and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, paragraph 83 above, EU:T:2012:597, paragraph 38; also see, to that effect and by analogy, judgment in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraphs 54 and 55). 85 As regards, first, the admissibility of the applicant’s request to have the Court review the indicia in the Commission’s possession, a request to which the Commission objected on the ground that it was submitted for the first time at the reply stage, it is indeed apparent from the case-law cited in paragraph 45 above that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure, but that a submission or argument that may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and is closely connected therewith, must be declared admissible. 86 It must be stated that even though the applicant did not expressly ask the Court in the application to review the indicia in the Commission’s possession, it is necessarily apparent from the explanations put forward in the second plea in law and, in particular, from paragraphs 98 to 103 of the application, that this was the thrust of its arguments. In addition, the more explicit request appearing in paragraphs 67 to 72 of the reply is closely connected with the explanations set out in paragraphs 98 to 103 of the application. Consequently, at all events, the request explicitly appearing in the reply constitutes amplification of the second plea in law and is therefore, also on that basis, admissible. 87 As regards, in the second place, the question whether the applicant’s request should be granted in the present case, it must be noted that the determination whether the Commission had reasonable grounds for suspecting an infringement of the competition rules before the adoption of an inspection decision is not the only means by which the Court can ensure that inspection decisions are not arbitrary. 88 Only when a request to that effect is brought before the Court and the undertakings to which a decision under Article 20(4) of Regulation No 1/2003 is addressed have put forward certain arguments liable to cast doubt on the reasonableness of the grounds on which the Commission relied in order to adopt that decision may the Court take the view that it is necessary to carry out such a determination (see, to that effect, judgments in Nexans France and Nexans v Commission, paragraph 83 above, EU:T:2012:596, paragraph 72, and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, paragraph 83 above, EU:T:2012:597, paragraph 70; see, by analogy, judgment of 14 March 2014 Cementos Portland Valderrivas v Commission, T‑296/11, ECR, EU:T:2014:121, paragraph 42). 89 The review of the statement of reasons on which a decision is based also allows the courts to ensure that the principle of protection against arbitrary and disproportionate intervention is respected, in so far as the statement of reasons makes it possible to show that the operation carried out on the premises of the undertakings concerned is justified (judgments in Hoechst v Commission, paragraph 79 above, EU:C:1989:337, paragraph 29; in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 47; and in France Télécom v Commission, paragraph 27 above, EU:T:2007:80, paragraph 57). 90 In that regard, it should be borne in mind that Article 20(4) of Regulation No 1/2003 defines the essential material that must be included in a decision ordering an inspection, requiring the Commission, in particular, to specify the subject-matter and purpose of the inspection. In respect of that obligation, it follows from the case-law cited in paragraph 80 above that it is for the Commission to state, as precisely as possible, the presumed facts that it wishes to investigate, namely, what it is looking for and the matters to which the inspection must relate. 91 Consequently, when the Court takes the view that the presumed facts which the Commission wishes to investigate and the matters to which the inspection must relate are defined sufficiently precisely, it may conclude that an inspection decision was not arbitrary, without it being necessary to check substantively the content of the indicia in the Commission’s possession at the date of adoption of the decision. 92 It must be stated that this is the case in respect of the contested decisions. As is apparent from recitals 3 to 10 in the preamble to the contested decisions, reproduced in paragraph 6 above, the nature of the suspected restrictions of competition is defined sufficiently precisely and in sufficient detail. Thus, they involve possible infringements of Article 102 TFEU owing to practices consisting of, first, limiting access to the applicant’s networks (‘tromboning’, port congestion and restricting route propagation) and, second, charging for access to those networks (billing the allocation of additional capacity, restrictive traffic ratios and margin squeezing). Furthermore, the contested decisions clearly explain how the applicant’s conduct could fall within the suspected practices. 93 In those circumstances, the Court is in a position to conclude that the contested decisions were not arbitrary on the sole basis of the reasons set out in those decisions, without it being necessary to examine the indicia in the Commission’s possession when the decisions were adopted. 94 In the light of the foregoing, the second plea in law must be rejected and, in consequence, the action must be dismissed in its entirety. Costs 95 Under Article 87(2) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Fourth Chamber) hereby: 1. Dismisses the action; 2. Orders Orange to bear the costs. Prek Labucka Kreuschitz Delivered in open court in Luxembourg on 25 November 2014. [Signatures] * Language of the case: French.