Opinion of the Advocate General — ECLI:EU:C:2015:92
Date: 2015-02-12
Language of the case: German
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 18 June 2015 1. Competition — Administrative procedure — Commission’s power of inspection — No prior judicial authorisation — Whether infringement of the right to the inviolability of the home — No — Post-inspection review of the lawfulness of the inspection decision — Fundamental guarantee (Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 20(2), 6, 7 and 8) 2. Competition — Administrative procedure — Commission’s power of inspection — No prior judicial authorisation — Whether infringement of the right to effective judicial protection — No — Post-inspection review of the lawfulness of the inspection decision — Scope (Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 20(4)) 3. Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Commission having informed its agents of another complaint against the undertaking concerned — No reference to that complaint in the inspection decision — Infringement of the obligation to state reasons and of the rights of the defence (Council Regulation No 1/2003, Art. 20(4)) 1. The Commission’s investigative powers under Article 20(2) of Regulation No 1/2003 are restricted to the Commission’s agents having the power, inter alia, to enter premises of their choosing, to have access to documents they request and make copies thereof, and to have shown to them the contents of pieces of furniture they indicate. Moreover, under Article 20(6) and (7) of Regulation No 1/2003, authorisation must be sought from a judicial authority where, when the undertaking concerned opposes an inspection, the Member State concerned provides the necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enable the inspection to be conducted and where such authorisation is required under national law. Authorisation may also be applied for as a precautionary measure. Article 20(8) further provides that although the national judicial authority is to control, inter alia, that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject-matter of the inspection, it may not call into question the necessity for the inspection, and that the decision is subject to review only by the Court of Justice. Consequently, the lack of prior judicial authorisation was not capable, in itself, of rendering the inspection measure unlawful. In that regard, the presence of a post-inspection judicial review is capable of offsetting the lack of prior judicial authorisation and is thus capable of constituting a fundamental guarantee in order to ensure the compatibility of the inspection measure in question with Article 8 of the European Convention on Human Rights. That is precisely the case under the system put in place in the European Union, as Article 20(8) of Regulation No 1/2003 states expressly that the lawfulness of the Commission decision is to be subject to review by the Court of Justice. That review means that the European Union courts carry out an in-depth review of the law and of the facts on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. (see paras 23-25, 32-34) 2. In an inspection decision adopted by the Commission pursuant to Article 20(4) of Regulation No 1/2003, the fundamental right to effective judicial protection, as guaranteed by Article 6(1) of the European Convention on Human Rights, is not disregarded by there being no prior judicial review. The key issue is the intensity of the review covering all matters of fact and law and providing an appropriate remedy if an activity found to be unlawful has taken place and not the point in time when it was carried out. The European Union Courts, ruling on an action for annulment brought against an inspection decision, conduct both a legal and factual review and have the power to evaluate the evidence and annul the contested decision. Moreover, it is open to undertakings that have undergone an inspection to challenge before the EU Courts the lawfulness of the inspection decision and such judicial proceedings can be initiated immediately after the undertaking has been notified of that decision, meaning that there is no need to wait until the Commission has adopted the final decision on the suspected infringement of the EU competition rules in order to bring an action for annulment before the European Union Courts. Lastly, if the inspection decision is annulled or if it is held that there has been an irregularity in the conduct of the investigation, the Commission will be prevented from using, for the purposes of infringement proceedings, any documents or evidence which it might have obtained in the course of that investigation. (see paras 41, 42, 44-46) 3. Although the efficacy of an inspection requires the Commission to have provided the agents responsible for the inspection with all the information that could be useful to them for understanding the nature and scope of the possible infringement of the competition rules as well as information relating to the logistics of the inspection, all that information must nevertheless relate solely to the subject-matter of the inspection ordered by decision. If the Commission informs its agents, prior to the an inspection being carried out, that there is an additional complaint about the undertaking in question, unrelated to the subject-matter of the inspection decision, it is not providing information which is part of the general background information on the case. Accordingly, the lack of reference to that complaint in the description of the subject-matter of that inspection decision infringes the obligation to state reasons and the rights of defence of the undertaking concerned. Therefore, the inspection is vitiated by irregularity since the Commission’s agents, being previously in possession of information unrelated to the subject-matter of that inspection, proceeded to seize documents falling outside the scope of the inspection as circumscribed by the inspection decision, especially where, at the time of the inspection, the agents gathered information which triggered a second inspection and in part formed the basis for a third inspection. (see paras 60, 62-66)