Information;Judgment — ECLI:EU:T:2025:417
Date: 2025-04-30
Language of the case: English
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - inadmissible;Action for annulment
Origin: Germany

summary document, drawn up on the basis of open source intelligence, in Annex 14 (see paragraph 71 above). 77 Similarly, while, as the applicant claims, Annex 14 does not identify the actual sources of information on which the Commission relies, in any event, that information is supported by the testimony in Annex 7. 78 In that regard, as the Commission observes, first, disclosing such sources of information may reveal its working methods, which it is entitled not to want to divulge in an area as sensitive as competition law, and, secondly, access to such sources might have made it possible to uncover the identity of the persons criticising the practices of the large fragrance manufacturers and given rise to potential retaliatory action against those persons. 79 The applicant also notes that, as regards Annexes 8 and 11, while it is stated in the response relating, in particular, to the question of consumers’ dependence on fragrance manufacturers that the ‘big three’ possess a credible retaliation mechanism, the applicant is not referred to as being one of those three. 80 In that regard, first, the applicant is named, in Annex 7, as one of the four largest manufacturers and it does not deny being the fourth largest fragrance manufacturer with a 12% share of the market under consideration. Secondly, that annex specifies that the four largest manufacturers, including the applicant, make up more than two-thirds of the global market, the other third being shared between various small companies. It may therefore be found that the applicant is, in any event, indeed one of the manufacturers on which consumers depend. 81 In addition, as regards Annex 9, the applicant highlights that that annex refers only to the three other fragrance manufacturers. 82 Even though that annex, from which appears that the four largest fragrance manufacturers adopt similar behaviour, in particular concerning pricing and contractual practices (see paragraph 69 above), does not refer specifically to the applicant, it must be observed that Annex 8 implicates it directly, in circumstances where it is indicated, first, that one of the competitors had knowledge of confidential information relating to ‘contract cycles’ concerning it and, secondly, that, in the context of a call for tenders, the applicant made contractual offers which were disturbingly similar to those of its competitors. 83 On the basis of that information, the Commission could reasonably suspect the existence of possible concerted action by the applicant with its competitors. 84 Furthermore, contrary to what the applicant claims, the fact that, at the start of Annex 8, only three manufacturers are named in the call for tenders and that, later in that annex, reference is made to the applicant does not appear to be such as to constitute an error on the part of the witness, since it cannot be ruled out that the applicant might have joined the three other fragrance manufacturers during the tendering procedure. 85 Lastly, it is necessary to note that, as the Commission explained, the competition authorities of the United-States, the United Kingdom and Switzerland launched concurrent inspections or other investigative measures into identical alleged anticompetitive conduct. The applicant specifies, however, that, as regards the United Kingdom, on 7 March 2023 – the day on which the inspection at issue in the present case began (see paragraph 9 above) – the UK’s Competition and Markets Authority issued a request to produce documents to the applicant’s subsidiary in the UK and, on the same day, its premises were visited. The applicant also states that the Swiss Competition Commission opened an investigation concerning it under Article 27 of the Kartellgesetz (Cartel Act). According to that provision, an investigation is to be opened ‘if there are indications of an unlawful restraint of competition’. 86 By these statements, the applicant confirms the existence of a context of suspicion of a cartel on an international scale. 87 In the second place, as regards how the inspection was conducted in the applicant’s premises, the applicant claims that it was particularly superficial since the Commission’s agents mainly restricted themselves to downloading IT data without, for example, searching for information on all the laptops or phones of the employees present or going through their hardcopy files. 88 However, it must be noted that such arguments are irrelevant since they do not concern, as such, the way in which the inspection was conducted, but the question whether the evidence possessed by the Commission is sufficient for it to suspect the anticompetitive practices referred to in the contested decision. 89 It follows from all of the foregoing that the first part of the first plea in law must be rejected. The second part, alleging that there was disproportionate interference with the right to privacy 90 The applicant submits, first, that, while Article 3 of the contested decision provides that ‘the inspection commences on 7th March 2023 of shortly thereafter’, the applicant remains exposed to the possibility of the Commission inspecting its premises again in the future, at any point in time, possibly repeatedly, since that decision does not indicate when the inspection ends. 91 Secondly, the fact that the contested decision allowed the inspection to continue for three and a half months after the on-site inspection constitutes disproportionate interference with the right to privacy. Such a disproportionate period, it argues, cannot be regarded as a reasonable length of time in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union and the case-law of the Court. 92 The Commission disputes the applicant’s arguments. 93 Under Article 20(4) of Regulation No 1/2003, an inspection decision must specify the date on which it is to begin. 94 The absence of any specific date by which the inspection has to be completed does not mean that the inspection can go on indefinitely, since the Commission is, in that regard, required to observe a reasonable time limit in accordance with Article 41(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 12 July 2018, Nexans France and Nexans v Commission, T‑449/14, EU:T:2018:456, paragraph 69). 95 According to recital 24 of Regulation No 1/2003, the Commission should be empowered to undertake such inspections ‘as are necessary’ to detect an agreement, decision or concerted practice prohibited by Article 101 TFEU. Therefore, according to the case-law, it is for the Commission to assess whether an inspection measure is necessary to detect an infringement of the competition rules (see, to that effect, judgment of 18 May 1982, AM & S Europe v Commission, 155/79, EU:C:1982:157, paragraph 17; see also, by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission, T‑296/11, EU:T:2014:121, paragraph 66 and the case-law cited). 96 The fact remains that that assessment is subject to review by the EU judicature and, in particular, to compliance with the rules governing the principle of proportionality. According to settled case-law, the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order for the desired objective to be attained. However, 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 (see judgment 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). 97 First of all, it is appropriate to reject the applicant’s argument that, since the date by which the inspection had to be completed was not specified, the applicant is exposed to ‘the possibility of the Commission inspecting its premises again in the future, at any point in time, possibly repeatedly’, because the applicant itself refers to receiving confirmation of the end of the inspection from the Commission just under four months after it began. 98 In addition, it is necessary to examine whether the period of the inspection at issue exceeded the limits necessary for it to be conducted properly. 99 It follows from the Commission’s explanations that, in accordance with the terms of the contested decision, the inspection, concerning Holzminden, commenced on 7 March 2023 and ended on 9 March 2023, since it was not until that date that the applicant communicated the data requested by the Commission. 100 Once those data were communicated, the Commission removed them to its own premises in order to analyse them and not to prolong the on-site inspection. The Commission then indexed the applicant’s data in its premises on 3 and 4 May 2023, and at the premises of the applicant’s lawyer, in the presence of that lawyer, between 21 and 23 June 2023, the date on which the inspection was definitively concluded. 101 It must accordingly be held that, first, the on-site inspection lasted for only three days and, secondly, the applicant has failed to establish how reviewing the data in the Commission’s premises and then at those of the applicant’s lawyer constitutes a disproportionate interference with the right to privacy. 102 The second part of the first plea in law must therefore be rejected. The third part, alleging disproportionate interference with the applicant’s right to privacy as a result of an inspection being conducted instead of a request for information being sent 103 In its observations of 12 September 2024, the applicant claims that it is apparent from the documents produced that the Commission could have investigated any alleged agreement by sending it a request for information. In that context, it argues, conducting an inspection was a disproportionate interference in its fundamental rights of inviolability of its private premises and of privacy. 104 In that regard, it must be noted that, while Article 84(2) of the Rules of Procedure allows for new pleas to be introduced after the second exchange of pleadings where matters of law or fact justify it, the applicant has not explained how it is apparent from the documents produced by the Commission that the latter could have simply, instead of conducting an on-site inspection, asked it to reply to a request for information. 105 That third part must therefore be rejected as inadmissible, since it is out of time. 106 In any event, it must be observed that the applicant does not put forward any argument capable of calling into question the statement in recital 13 of the contested decision that ‘in order to ensure the effectiveness of the inspection, it is essential that it be carried out without prior warning to the undertakings or association of undertakings alleged to be involved in the infringements and in several places at the same time’. 107 It follows from the foregoing that the first plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 108 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. 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 (First Chamber) hereby: 1. Dismisses the action; 2. Orders Symrise AG to pay the costs. Mastroianni Gâlea Tóth Delivered in open court in Luxembourg on 30 April 2025. V. Di Bucci M. van der Woude Registrar President * Language of the case: English.