Judgment — ECLI:EU:T:2012:596
Date: 2012-11-14
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Competition
Procedure: Action for annulment - unfounded;Action for annulment - successful;Action for annulment - inadmissible
Origin: France

summary of the pleas in law on which the application is based. According to consistent case-law, it is necessary, if an action is to be admissible, for the basic matters of law and fact relied on to be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents appended thereto, a general reference to other documents, even those appended to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the above provisions, must appear in the application. Furthermore, it is not for the Court to seek out and identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94 and the case-law cited). 113 That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court also applies to the conditions for the admissibility of a reply, which, under Article 47(1) of the Rules of Procedure, is intended to supplement the application (see Microsoft v Commission, paragraph 112 above, paragraph 95 and the case-law cited). 114 In the present case, the disputed opinion is only referred to twice in the reply. First, the reply states, without providing other explanations, that the conclusion reached by the authors of the disputed opinion, following the examination of the issue of the admissibility of the second and third heads of claim, is also that which is set out in the reply, without mentioning to which specific points of that 13-page annex reference is being made. Next, it states that the disputed opinion substantiates the statement that the privilege against self-incrimination and the right of every person to protection against arbitrary interference in the sphere of his private activity are fundamental rights which form part of the general principles of Community law. Accordingly, it is only in relation to that latter statement that account should be taken of the disputed opinion (see, to that effect, Case T‑151/01 Duales System Deutschland v Commission [2007] ECR II‑1607, paragraphs 78 and 81). Admissibility of the applications for annulment of the contested acts 115 It has consistently been held that acts against which an action for annulment may be brought under Article 230 EC are those which produce binding legal effects capable of affecting the applicant’s interests by bringing about a distinct change in his legal position (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Joined Cases T‑10/92 to T‑12/92 and T‑15/92 Cimenteries CBR and Others v Commission [1992] ECR II‑2667, paragraph 28). 116 In principle, an intermediate measure intended to pave the way for the final decision is not therefore a challengeable measure. However, according to case‑law, acts adopted in the course of the preparatory procedure which were themselves the culmination of a special procedure distinct from that intended to permit the Commission to take a decision on the substance of the case and which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct change in his legal position, also constitute challengeable measures (IBM v Commission, paragraph 115 above, paragraphs 10 and 11, and Joined Cases T‑213/01 and T‑214/01 Österreichische Postsparkasse and Bank für Arbeit und Wirtschaft v Commission [2006] ECR II‑1601, paragraph 65). 117 The Commission maintains that the applications for annulment of the contested acts are inadmissible. Those acts merely implement the inspection decision and do not bring about a distinct change in the applicants’ legal position. 118 The applicants submit that the contested acts have brought about a significant change in their legal position and have seriously and irreversibly affected their fundamental rights – their right to privacy and the rights of the defence. They should therefore be considered to be challengeable measures. First, since no provision was made for them in the inspection decision, those acts cannot constitute implementing measures. Second, the form of a measure is irrelevant as regards the issue of whether it produces binding legal effects. As it is, the applicants were obliged to comply with the contested acts in order to avoid being required to pay an increase in the amount of any fine to which they might be liable or even to avoid other penalties. Those acts are therefore similar to requests for information made under Article 18(3) of Regulation No 1/2003, a provision which expressly provides that those measures are challengeable. Third, the contested acts have compromised the applicants’ ability to defend themselves in competition investigations before other courts. Fourth and lastly, the decision to take copies of several computer files and of the hard drive of Mr C’s computer produced legal effects, since those storage media contain data such as emails, addresses and so on, which are of a personal nature and protected by the right to privacy and the confidentiality of correspondence. 119 First of all, it must be observed that the contested acts are intermediate measures designed solely to pave the way for the adoption by the Commission of a final decision under Article 81(1) EC. Pursuant to those acts, the Commission copied certain computer files which had been found during the inspection and obtained explanations on specific documents also found during the inspection in order to check the actual existence and scope of a factual and legal situation regarding which it already had information – namely, the suspected cartel – with a view to preparing, if necessary, a final decision on that situation. 120 Next, it is apparent from Article 20(2)(c) and (e) of Regulation No 1/2003 that both the taking, in any form, of copies of or extracts from a business record, whatever its medium, of the undertaking concerned by an inspection ordered under Article 20(4) of that regulation and a request addressed to the employees or representatives of that undertaking for explanations of those documents in relation to the subject-matter and purpose of that inspection constitute measures implementing the decision under which the inspection was ordered. The inspection decision itself provided that Nexans France was to authorise the inspectors to copy those business records and to give them, at the premises, ‘explanations relating to the subject-matter and purpose of the inspection’ (see paragraph 3 above). 121 As the Commission correctly submits, any inspection ordered under Article 20(4) of Regulation No 1/2003 implies that a selection of documents will be examined and, depending on the case, copied, and that a selection of questions will be put to the employees or representatives of the undertakings concerned relating to the subject‑matter and purpose of the inspection. It is pursuant to the decision ordering the inspection, rather than pursuant to another distinct act adopted during the inspection, that those undertakings are required to allow the Commission to copy the documents at issue and to authorise their employees and representatives to provide the explanations requested. 122 A comparison of Article 18(3) and Article 20(2)(c) and (e) of Regulation No 1/2003 also suggests that the copying of documents and the requests for explanations made during inspections constitute measures implementing decisions ordering an inspection. 123 First, Article 18(3) of Regulation No 1/2003 provides that the requests for information addressed to undertakings under that provision may be the subject of an independent review. On the other hand, Regulation No 1/2003 is silent as regards the explanations requested during inspections and the copying of documents during inspections. 124 Second, it is apparent from Article 18(1) and Article 18(3) of Regulation No 1/2003 that the Commission may, under those provisions, require undertakings and associations of undertakings to provide all necessary information. On the other hand, pursuant to Article 20(2)(e) of that regulation, the Commission may request only explanations of facts or documents relating to the subject-matter and purpose of the inspection. 125 It must therefore be held that the copying of each document and the asking of each question during an inspection are not to be regarded as acts separable from the decision under which the inspection was ordered but as measures implementing that decision. 126 Lastly, it must be pointed out that, as the Commission submits, it could not have penalised the applicants on the ground that they had refused to allow it to copy the documents at issue or to provide a full answer to the inspectors’ questions to Mr C without adopting a decision under Article 23(1)(c) and (d) of Regulation No 1/2003. That decision, which would be distinct from the inspection decision and the final decision adopted under Article 81(1) EC, could be challenged by an action in which the Court would be moved to determine whether the copying of the documents concerned and the obtaining of the explanations requested by the Commission pursuant to the contested acts had adversely affected the applicants’ fundamental rights to privacy and of defence, as asserted by the latter. 127 In order to substantiate their argument that the contested acts produce binding legal effects such as to affect their interests by bringing about a distinct change in their legal position and, in the alternative, that the contested acts are themselves the culmination of a special procedure distinct from that intended to permit the Commission to take a decision on the substance of the case, for the purposes of the case-law referred to in paragraph 116 above, the applicants rely on Case 155/79 AM & S Europe v Commission [1982] ECR 1575, and Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523. 128 In this connection, it should be noted that the applicants in the cases which gave rise to the judgments referred to in paragraph 127 had argued before the Commission that certain documents which the Commission had requested them to produce in the course of an inspection ordered under Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), or following that regulation, were covered by the confidentiality of communications between lawyers and their clients. It was in that context that the Court held that the decision by which the Commission rejected the request for the protection of the documents at issue produced legal effects for the undertakings concerned, in so far as that decision withheld the protection provided under Community law and was definitive in nature and independent of any final decision making a finding of an infringement of the competition rules (Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraph 127 above, paragraph 46; see also, to that effect, AM & S Europe v Commission, paragraph 127 above, paragraphs 27 and 29 to 32). 129 However, the applicants did not claim at the time of the adoption of the contested acts that the documents copied by the Commission or the information obtained by it under those acts were eligible, under EU law, for protection similar to that conferred on the confidentiality of communications between lawyers and their clients. When the Commission decided to copy those documents and to request the applicants to provide that information it did not, therefore, adopt a decision withholding that protection from the applicants. 130 As regards the documents copied during the inspection, it must be pointed out that the applicants kept the originals, in either paper or electronic form, and are able to ascertain the nature and the content of those documents. Notwithstanding that fact, the applicants did not identify specific documents or parts of documents which are protected under EU law. The applicants merely maintain that the Commission did not have the right to copy those documents in order to examine them later in its offices. According to the applicants, the documents ought to have been examined at the premises of Nexans France, and the Commission was entitled to take a copy only of those documents relevant for the purposes of the investigation. It must therefore be held that the applicants are not taking issue with the Commission for having consulted or copied certain specific protected documents, but for having examined them in its own offices in Brussels rather that at the premises of Nexans France and for having kept them up until the time of the examination. 131 As regards the questions put to Mr C during the inspection, it is apparent from the file that the applicants, which were accompanied by their lawyers, did not in any way object to the Commission obtaining the information sought. In asking those questions, the Commission could not, therefore, have adopted a decision withholding from the applicants the protection provided for under EU law. 132 It follows from the foregoing that the contested acts cannot be regarded as actionable measures. The legality of those acts could only be examined – apart from in the context of an action for annulment of the decision imposing a penalty, referred to in paragraph 126 above – in the context of an action challenging the final decision adopted by the Commission under Article 81(1) EC. Review by the Courts of the way in which an inspection was conducted falls within the scope of an action for the annulment of the final decision adopted by the Commission under that provision (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 413 and 414). 133 Moreover, if the applicants believe that the acts by which the Commission took a copy of several computer files and of the hard drive of Mr C’s computer in order to examine them later in its offices and requested from him explanations of documents found during the inspection are illegal and have caused them to suffer harm such as to cause the European Union to incur liability, they may bring an action against the Commission for non-contractual liability. A remedy of that kind is not part of the system for the review of the legality of acts of the European Union which have legal effects binding on, and capable of affecting the interests of, the applicant, but it is available where a party has suffered harm on account of unlawful conduct on the part of an institution (see, to that effect, Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraphs 82 and 83). 134 The applications for annulment of the contested acts must therefore be declared inadmissible. 3. The fourth to seventh heads of claim 135 As the applicants themselves observe, by their fourth to seventh heads of claim they are seeking a ruling from the Court on the consequences of the annulment of the inspection decision and of the contested acts. 136 Accordingly, as the Commission contends, the applicants are seeking to obtain from the Court a declaration relating to the effects of a ruling ordering annulment, which would also constitute a direction to the Commission as regards how that judgment is to be complied with. However, since the Court has no jurisdiction, in the context of a review of legality on the basis of Article 230 EC, to issue declaratory judgments (see, to that effect, order of the Court in Case C‑224/03 Italy v Commission [2003] ECR I‑14751, paragraphs 20 to 22) or directions, even where they concern the manner in which its judgments are to be complied with (order in Joined Cases C‑199/94 P and C‑200/94 P Pevasa and Inpesca v Commission [1995] ECR I‑3709, paragraph 24), the applicants’ request must be declared manifestly inadmissible (see, to that effect, Case T‑145/06 Omya v Commission [2009] ECR II‑145, paragraph 23). 137 It follows from all the foregoing that the inspection decision must be annulled in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables. The action must be dismissed as to the remainder. Costs 138 Under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bear its own costs. 139 Since the applicants have been unsuccessful in their main heads of claim they must be ordered, in addition to bearing their own costs, to pay half of the costs incurred by the Commission. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Annuls Commission decision C (2009) 92/1 of 9 January 2009 ordering Nexans SA and all companies directly or indirectly controlled by it, including Nexans France SAS, to submit to an inspection in accordance with Article 20, paragraph 4, of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], in so far as it concerns electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables; 2. Dismisses the action as to the remainder; 3. Orders Nexans and Nexans France to bear their own costs and to pay half of the costs incurred by the European Commission; 4. Orders the European Commission to bear half of its own costs. Truchot Martins Ribeiro Kanninen Delivered in open court in Luxembourg on 14 November 2012. [Signatures] Table of contents Factual background to the dispute Procedure and forms of order sought Law 1. The application for annulment of the inspection decision The first branch: the product scope of the inspection decision is overly broad and vague Preliminary observations The first ground of challenge: the inspection decision was imprecise in its delimitation of the products concerned The second ground of challenge: the high voltage underwater cable sector was the only sector in relation to which the Commission had reasonable grounds for suspecting an infringement of the competition rules on the part of the applicants The second branch: the geographical scope of the inspection decision was overly broad 2. The applications for annulment of the contested acts Admissibility Admissibility of the legal opinion appended to the reply – The first objection of inadmissibility: infringement of Article 5(3) and Article 5(7) of the Instructions to the Registrar of the Court – The second objection of inadmissibility: the disputed opinion does not substantiate the arguments expressly put forward in the reply and contains explanations which are not repeated there Admissibility of the applications for annulment of the contested acts 3. The fourth to seventh heads of claim Costs * Language of the case: English. 1 Hidden confidential details