62020CJ0682
JUDGMENT OF THE COURT (First Chamber)
9 March 2023 (
*1
)
(Text rectified by order of 27 April 2023)
(Appeal – Competition – Agreements, decisions and concerted practices – Decision of the European Commission ordering an inspection – Remedies against the conduct of the inspection – Article 47 of the Charter of Fundamental Rights of the European Union – Right to an effective remedy – Regulation (EC) No 1/2003 – Article 19 – Regulation (EC) No 773/2004 – Article 3 – Recording of interviews conducted by the Commission during its investigations – Starting point of the Commission’s investigation)
In Case C‑682/20 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 December 2020,
Les Mousquetaires SAS, established in Paris (France),
ITM Entreprises SAS, established in Paris,
(As rectified by order of 27 April 2023) represented by N. Jalabert‑Doury and K. Mebarek, avocats,
appellants,
the other parties to the proceedings being:
European
Commission, represented by P. Berghe, A. Cleenewerck de Crayencour, A. Dawes and I.V. Rogalski, acting as Agents,
defendant at first instance,
Council of the European
Union, represented by A.‑L. Meyer and O. Segnana, acting as Agents,
intervener at first instance,
THE COURT (First Chamber),
composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the First Chamber, P.G. Xuereb (Rapporteur), A. Kumin and I. Ziemele, Judges,
Advocate General: G. Pitruzzella,
Registrar: V. Giacobbo, Administrator,
having regard to the written procedure and further to the hearing on 24 February 2022,
after hearing the Opinion of the Advocate General at the sitting on 14 July 2022,
gives the following
Judgment
1
By their appeal, Les Mousquetaires SAS and ITM Entreprises SAS (‘Intermarché’) seek to have set aside in part the judgment of the General Court of the European Union of 5 October 2020, Les Mousquetaires and ITM Entreprises v Commission (T‑255/17, EU:T:2020:460; ‘the judgment under appeal’), by which the General Court dismissed in part their action under Article 263 TFEU seeking annulment of Commission Decision C(2017) 1057 final of 9 February 2017 ordering Intermarché and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1) (‘the first decision at issue’) and Commission Decision C(2017) 1361 final of 21 February 2017 ordering Les Mousquetaires and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1) (‘the second decision at issue’ and, together with the first decision at issue, ‘the decisions at issue’).
Legal context
Regulation (EC) No 1/2003
2
Recital 25 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) states:
‘The detection of infringements of the competition rules is growing ever more difficult, and, in order to protect competition effectively, the [European] Commission’s powers of investigation need to be supplemented. The Commission should in particular be empowered to interview any persons who may be in possession of useful information and to record the statements made. In the course of an inspection, officials authorised by the Commission should be empowered to affix seals for the period of time necessary for the inspection. Seals should normally not be affixed for more than 72 hours. Officials authorised by the Commission should also be empowered to ask for any information relevant to the subject matter and purpose of the inspection.’
3
Chapter V, entitled ‘Powers of investigation’, includes Article 17 of that regulation, itself entitled ‘Investigations into sectors of the economy and into types of agreements’, paragraph 1 of which states:
‘Where the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market, the Commission may conduct its inquiry into a particular sector of the economy or into a particular type of agreements across various sectors. In the course of that inquiry, the Commission may request the undertakings or associations of undertakings concerned to supply the information necessary for giving effect to Articles [101] and [102 TFEU] and may carry out any inspections necessary for that purpose.’
4
Article 19 of that regulation, entitled ‘Power to take statements’, provides:
‘1.   In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation.
2.   Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the competition authority of the Member State in whose territory the interview takes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.’
5
Article 20 of that regulation, entitled ‘The Commission’s powers of inspection’, provides:
‘1.   In order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.
2.   The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:
(a)
to enter any premises, land and means of transport of undertakings and associations of undertakings;
(b)
to examine the books and other records related to the business, irrespective of the medium on which they are stored;
(c)
to take or obtain in any form copies of or extracts from such books or records;
(d)
to seal any business premises and books or records for the period and to the extent necessary for the inspection;
(e)
to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers.
3.   The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Article 23 in case the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraph 2 of the present Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the competition authority of the Member State in whose territory it is to be conducted.
4.   Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice [of the European Union]. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.
5.   Officials of as well as those authorised or appointed by the competition authority of the Member State in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers specified in paragraph 2.
6.   Where the officials and other accompanying persons authorised by the Commission find that an undertaking opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection.
7.   If the assistance provided for in paragraph 6 requires authorisation from a judicial authority according to national rules, such authorisation shall be applied for. Authorisation may also be applied for as a precautionary measure.
8.   Where authorisation as referred to in paragraph 7 is applied for, the national judicial authority shall control that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the Member State competition authority, for detailed explanations in particular on the grounds the Commission has for suspecting infringement of Articles [101] and [102 TFEU], as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity for the inspection nor demand that it be provided with the information in the Commission’s file. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.’
6
Article 23 of Regulation No 1/2003, entitled ‘Fines’, provides in paragraph 1:
‘The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently:
…
(c)
they produce the required books or other records related to the business in incomplete form during inspections under Article 20 or refuse to submit to inspections ordered by a decision adopted pursuant to Article 20(4);
(d)
in response to a question asked in accordance with Article 20(2)(e),
–
they give an incorrect or misleading answer,
–
they fail to rectify within a time limit set by the Commission an incorrect, incomplete or misleading answer given by a member of staff, or
–
they fail or refuse to provide a complete answer on facts relating to the subject matter and purpose of an inspection ordered by a decision adopted pursuant to Article 20(4);
(e)
seals affixed in accordance with Article 20(2)(d) by officials or other accompanying persons authorised by the Commission have been broken.’
Regulation (EC) No 773/2004
7
Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), entitled ‘Initiation of proceedings’, provides in paragraph 3:
‘The Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings.’
8
Chapter III, entitled ‘Investigations by the Commission’, includes Article 3 of Regulation No 773/2004, itself entitled ‘Power to take statements’, which provides:
‘1.   Where the Commission interviews a person with his consent in accordance with Article 19 of Regulation … No 1/2003, it shall, at the beginning of the interview, state the legal basis and the purpose of the interview, and recall its voluntary nature. It shall also inform the person interviewed of its intention to make a record of the interview.
2.   The interview may be conducted by any means including by telephone or electronic means.
3.   The Commission may record the statements made by the persons interviewed in any form. A copy of any recording shall be made available to the person interviewed for approval. Where necessary, the Commission shall set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.’
Background to the dispute and the decisions at issue
9
The background to the dispute, as set out in paragraphs 2 to 11 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
10
Les Mousquetaires is the holding company of a group which is active in the food and non-food distribution sector in France and Belgium. Intermarché is its subsidiary.
11
Having received information about exchanges of information between Intermarché and competing undertakings, in particular Casino, the Commission, by the first decision at issue, ordered an inspection at the premises of Intermarché and its subsidiaries.
12
The operative part of that decision reads as follows:
‘Article 1
… Intermarché … and all companies directly or indirectly controlled by it, are required to submit to an inspection in relation to their possible participation in concerted practices contrary to Article 101 [TFEU] in the markets for the supply of fast-moving consumer goods, in the market for the sale of services to manufacturers of branded goods and in the markets for consumer sales of fast-moving consumer goods. Those concerted practices consist in:
(a)
exchanges of information, since 2015, between undertakings and/or associations of undertakings, in particular AgeCore and/or its members, in particular Intermarché, and [International Casino Dia Corporation (ICDC)] … and/or its members, in particular Casino, concerning discounts obtained by them in the markets for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors and prices in the market for the sale of services to manufacturers of branded products in the food products, hygiene products and maintenance products sectors, in several Member States of the European Union, particularly in France, and
(b)
exchanges of information, since at least 2016, between Casino and Intermarché concerning their future business strategies, particularly in terms of product range, development of shops, e-commerce and advertising policy in the markets for the supply of fast-moving consumer goods and in the markets for consumer sales of fast-moving consumer goods, in France.
The inspection may take place in any of the undertaking’s premises …
Intermarché shall grant the officials and other persons authorised by the Commission to conduct an inspection and the officials and other persons authorised by the Competition Authority of the Member State concerned to assist them or appointed by that Member State for that purpose access to all of its premises and means of transport during normal office hours. It shall make available for inspection the books and any other business document, irrespective of the medium on which they are stored, if the officials and other authorised persons so request and shall allow them to examine those books and documents in situ and to take or obtain copies or extracts from those books or documents in any form whatsoever. It shall permit seals to be placed on all the business premises or books or documents throughout the inspection period in so far as that is necessary for the purposes of the inspection. It shall give oral explanations immediately and in situ on the subject matter and the aim of the inspection if those officials or persons so request and shall authorise any representative or member of the staff to provide such explanations. It shall permit those explanations to be recorded in any form whatsoever.
Article 2
The inspection may commence on 20 February 2017 or shortly thereafter.
Article 3
Intermarché … and all companies directly or indirectly controlled by it are the addressees of the present decision.
This decision shall be notified, just before the inspection, to the undertaking to which it is addressed, pursuant to Article 297(2) [TFEU].’
13
Having been informed of that inspection by the Commission, the Autorité de la concurrence (Competition Authority, France) made application to the judge of liberty and detention of the tribunal de grande instance (Regional Court) of Evry (France) for authorisation to carry out the visit and seizure operations at the appellants’ premises. By order of 17 February 2017, that judge authorised the visits and seizures requested as a precautionary measure. As none of the measures taken during the inspection required the use of ‘enforcement authorities’ for the purposes of Article 20(6) to (8) of Regulation No 1/2003, that order was not notified to the appellants.
14
The inspection commenced on 20 February 2017, when the Commission’s inspectors, accompanied by representatives of the Competition Authority, attended Intermarché’s premises.
15
Following doubts concerning the status as an Intermarché employee of one of the persons concerned by the inspection, the Commission adopted the second decision at issue, ordering an inspection at the premises of the holding company, Les Mousquetaires, and its subsidiaries, on the same grounds as those stated in the first decision at issue.
16
In the course of that inspection, the Commission, inter alia, visited offices, seized computer equipment (portable computers, mobile phones, tablets, storage devices), copied the information held thereon and interviewed several individuals.
17
By letters of 24 February 2017, the appellants informed the Commission of reservations as to the decisions at issue and the conduct of the inspections ordered by those decisions, disputing in particular the copying of documents allegedly relating to the private life of members of their staff. By letter of 13 April 2017, the appellants requested the Commission to return some of those documents.
The procedure before the General Court and the judgment under appeal
18
By application lodged at the Registry of the General Court on 28 April 2017, the appellants brought an action under Article 263 TFEU for, inter alia, annulment of the decisions at issue. The appellants relied, in essence, on five pleas in law in support of their action. The first plea alleged the illegality of Article 20(4) of Regulation No 1/2003; the second alleged failure to notify the decisions at issue properly; the third alleged denial of their right to defend themselves against the inspection; the fourth alleged breach of the obligation to state reasons; and the fifth alleged breach of the right to the inviolability of the home.
19
By way of measures of organisation of procedure, the General Court requested the Commission to produce indicia of presumed infringements which it had in its possession on the date of the decisions at issue.
20
In response to that request, the Commission produced inter alia minutes of interviews held in 2016 and 2017 with 13 suppliers of the fast-moving consumer goods concerned which regularly entered into agreements with Casino and Intermarché (Annexes Q.1 to Q.13 to the Commission’s response of 10 January 2019) (‘the interviews with suppliers’).
21
By the judgment under appeal, the General Court, having found that the Commission did not possess sufficiently serious indicia to suspect the existence of an infringement consisting of exchanges of information between Casino and Intermarché concerning their future business strategies, annulled Article 1(b) of each of the decisions at issue and dismissed the action as to the remainder.
Forms of order sought
22
By their appeal, the appellants claim that the Court should:
–
set aside point 2 of the operative part of the judgment under appeal;
–
grant the form of order sought by them at first instance and annul the decisions at issue; and
–
order the Commission to pay all the costs of all proceedings, including the costs of the proceedings before the General Court.
23
The Commission contends that the Court should:
–
dismiss the appeal; and
–
order the appellants to pay the costs.
24
The Council of the European Union contends that the Court should:
–
dismiss the first ground of appeal; and
–
order the appellants to pay the costs of the appeal.
The appeal
25
The appellants put forward five grounds of appeal in support of their appeal. The first ground of appeal alleges errors of law and a failure to state reasons by the General Court in the context of its analysis of the effectiveness of the remedies concerning the conduct of inspections. The second ground of appeal alleges infringement of Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), Article 296 TFEU and Article 20(4) of Regulation No 1/2003 in that the General Court disregarded the obligation to state reasons and to limit inspection decisions. The third ground of appeal alleges an error of law and infringement of Regulation No 1/2003 in that the General Court characterised a procedural phase ‘before the adoption of any measure involving the accusation of the commission of an infringement’ as not subject to that regulation. The fourth ground of appeal alleges infringement of Articles 6 and 8 of the ECHR and Article 19 of Regulation No 1/2003 in that the General Court categorised as ‘sufficiently serious indicia’ elements affected by formal and substantive irregularities. Lastly, the fifth ground of appeal alleges a failure to state reasons resulting from a failure to check the probative value of those indicia and an error as to the categorisation as ‘indicia’.
The first ground of appeal, alleging errors of law and a failure to state reasons in the judgment under appeal in the analysis of the effectiveness of the remedies relating to the conduct of inspections
Arguments of the parties
26
The appellants challenge paragraphs 83 to 112 of the judgment under appeal, in which the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, alleging the lack of an effective remedy enabling the conduct of inspections to be challenged.
27
By the first part of the first ground of appeal, the appellants submit that the General Court infringed its obligation to state reasons in the analysis of the effectiveness of the remedies relating to the conduct of inspections.
28
By the second part of the first ground of appeal, the appellants allege infringement of the right to an effective remedy. They submit that, in its judgment of 2 October 2014, Delta Pekárny a.s. v. The Czech Republic (CE:ECHR:2014:1002JUD000009711), the European Court of Human Rights held that the compatibility with the ECHR of an interference, such as that caused by an inspection, requires, inter alia, an effective remedy to challenge, in law and in fact, not only the lawfulness of the authorisation, but also the conditions of the conduct of an inspection to which the undertaking is required to submit.
29
By the first complaint in the second part of the first ground of appeal, the appellants dispute the grounds on which the General Court, in paragraphs 83 and 87 of the judgment under appeal, held that the case-law of the European Court of Human Rights makes it possible to verify observance of the right to an effective remedy against the measures taken in the context of an inspection by carrying out an overall analysis, rather than an individual analysis, of the remedies in question.
30
The appellants submit that it is apparent, in that regard, from paragraph 42 of the judgment of the European Court of Human Rights of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808), that both the action challenging the legality of the authorisation of an inspection and the action challenging the measures taken in the context of those inspections should be effective.
31
Consequently, the General Court erred in law, in paragraphs 83 and 99 to 111 of the judgment under appeal, in examining those remedies together and in holding that the disadvantages of one of those remedies could be compensated by the advantages of the other.
32
In the appellants’ submission, if the General Court had carried out a separate examination of those remedies, it would have had to reject three of the six remedies which it acknowledged as being effective, namely, the action against the decision closing the procedure under Article 101 TFEU, the action against the inspection decision and, lastly, the action for non-contractual damages. All the other remedies are partial and do not permit verification, in fact or in law, that all the conditions of the conduct of an inspection comply with Article 8 of the ECHR, even by pursuing all of them.
33
By the second complaint in the second part of the first ground of appeal, the appellants submit that the General Court, in holding that partial remedies are effective, imposes on the undertaking concerned the obligation to create the necessary conditions enabling all those legal remedies to be used.
34
Both the application for interim measures and the ex post action relating to data protection, as well as the action based on the case-law established in the judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission (T‑125/03 and T‑253/03, EU:T:2007:287) on the protection of legal professional privilege, presuppose that the undertaking, by turning away from the ongoing inspection, succeeds in bringing about an express or implied decision from the Commission which infringes the right to safeguard the confidentiality of correspondence between lawyers and clients or, as the case may be, the right to respect for privacy. Those remedies are also based on the Commission’s agreement to place the information in a sealed envelope pending the General Court’s decision. The application for interim measures during the inspection also presupposes that the undertaking turns away from the ongoing inspection, in which it has an obligation to cooperate actively.
35
As regards an action against a decision penalising an obstruction of the inspection, the existence of that remedy requires the undertaking to be obstructive to the point of having a penalty imposed on it. Such a requirement is contrary to Article 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
36
By the third complaint in the second part of the first ground of appeal, the appellants submit that, in paragraphs 94 and 96 of the judgment under appeal, the General Court erred in law when it examined the possibility of allowing two novel remedies, namely, first, an application for interim measures seeking suspension of the inspection itself and, second, an ex post action concerning the protection of the private information of managers and employees. Hypothetical remedies cannot be considered to be effective remedies.
37
The Commission and the Council contend that the appellants’ arguments are unfounded. The Council argues, moreover, that the complaint alleging a failure to state reasons is inadmissible, since the appellants fail to identify precisely the contested elements of the judgment under appeal or develop substantiated legal arguments in support of that complaint.
Findings of the Court
38
By the first part of the first ground of appeal, the appellants submit that the General Court infringed its obligation to state reasons in the analysis of the effectiveness of the remedies relating to the conduct of inspections.
39
As regards the admissibility of that part, which is disputed by the Council, it must be borne in mind, at the outset, that it is settled case-law that an absence of or inadequate statement of reasons constitutes an infringement of essential procedural requirements for the purposes of Article 263 TFEU and is a plea involving a matter of public policy which may, and even must, be raised by the EU judicature of its own motion (judgments of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraph 34, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 57). It follows that the Council’s argument relating to the inadmissibility of the first part of the first ground of appeal must be rejected.
40
As regards the merits of that part, it must be recalled that, in accordance with the Court’s settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 98 and the case-law cited).
41
In the present case, in paragraphs 78 to 82 of the judgment under appeal, the General Court first of all observed that the right to an effective remedy is enshrined in Article 47 of the Charter and in Articles 6 and 13 of the ECHR. After observing that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into the EU legal order, so that the review of legality must be carried out solely in the light of the fundamental rights guaranteed by the Charter, it pointed out that it follows both from Article 52 of the Charter and from the explanations relating to that article that the provisions of the ECHR and the case-law of the European Court of Human Rights relating to those provisions must be taken into account when interpreting and applying the provisions of the Charter in a given case.
42
It held in that regard that, according to the case-law of the European Court of Human Rights, observance of the right to an effective remedy must be examined, in relation to inspections of private premises, in the light of the following four conditions: first, there must be effective judicial review, in fact and in law, of the lawfulness of the decision to carry out such inspections or of the measures taken in the context of those inspections; second, the remedy or remedies available must make it possible, in the event of an irregularity being found, either to prevent the operation from occurring or, in the event that an irregular operation has already taken place, to provide the person concerned with appropriate relief; third, the availability of the action concerned must be certain; and, fourth, judicial review must take place within a reasonable time.
43
The General Court then observed, in paragraph 83 of the judgment under appeal, that it was also apparent from that case-law that the conduct of an inspection operation had to be amenable to effective judicial review and that the review had to be effective in the particular circumstances of the case in question, which involved taking into account all the legal remedies available to an undertaking under inspection and thus an overall analysis of those legal remedies. In paragraphs 86 and 87 of the judgment under appeal, the General Court held that, since verification of observance of the right to an effective remedy must be based on an overall analysis of the legal remedies capable of giving rise to a review of the measures taken in the context of an inspection, it was irrelevant that each of the legal remedies examined did not individually satisfy the conditions required for the existence of a right to an effective remedy to be accepted.
44
In that context, the General Court further stated, in paragraphs 88 and 89 of the judgment under appeal, that, in addition to the possibility of making requests to the Commission’s hearing officer, there were six legal remedies enabling challenges relating to an inspection operation to be brought before the EU judicature, namely an action challenging the inspection decision; an action challenging the Commission’s decision penalising obstruction of the inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003; an action challenging any act satisfying the conditions laid down in the case-law to be a challengeable act adopted by the Commission following the inspection decision and in the course of the inspection operations, such as a decision rejecting a request for legal professional privilege; an action against the decision closing the procedure initiated under Article 101 TFEU; an action for interim measures; and an action for non-contractual damages.
45
In paragraphs 90 to 98 of the judgment under appeal, the General Court explained how it considered that those legal remedies allowed challenges to the conduct of inspections to be brought before the EU judicature.
46
Lastly, the General Court held, following an analysis carried out in paragraphs 100 to 110 of the judgment under appeal, that the system for reviewing the conduct of inspection operations comprising all the legal remedies listed in paragraph 44 of the present judgment could be regarded as satisfying the four conditions stemming from the case-law of the European Court of Human Rights.
47
Thus, in paragraph 111 of the judgment under appeal, the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, based on infringement of the right to an effective remedy.
48
In those circumstances, it must be held that, contrary to what the appellants claim, the grounds on which the General Court rejected the arguments alleging the lack of an effective remedy as regards the conditions of the conduct of inspections are clearly and unequivocally set out in paragraphs 78 to 111 of the judgment under appeal, summarised in paragraphs 41 to 47 of the present judgment. Those grounds enabled the appellants to ascertain the reasons for the judgment under appeal, as is apparent, moreover, from the content of their appeal, and enable the Court to exercise its power of review.
49
Consequently, the first part of the first ground of appeal, alleging a failure to state reasons, must be rejected as unfounded.
50
By the second part of the first ground of appeal, the appellants allege infringement of the right to an effective remedy.
51
As regards the first complaint in the second part of the first ground of appeal, alleging that the General Court should have carried out an individual examination of the various remedies in order to ascertain whether the right to an effective remedy against the measures taken in the context of an inspection is safeguarded, it must be borne in mind that the right to an effective remedy is enshrined in Article 47 of the Charter.
52
It must also be borne in mind that Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to those guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 116).
53
As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 117). According to the case-law of the European Court of Human Rights, Article 6(1) of the ECHR constitutes a lex specialis in relation to Article 13 of that convention, since the requirements of the latter are included in the stricter requirements of the former (European Court of Human Rights, 15 March 2022, Grzęda v. Poland, CE:ECHR:2022:0315JUD004357218, § 352 and the case-law cited).
54
The Court has also held that it must ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgment of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraph 35).
55
In that regard, it should be noted that it is apparent from the case-law of the European Court of Human Rights that the protection afforded by Article 13 of the ECHR does not go so far as to require any particular form of remedy (European Court of Human Rights, 20 March 2008, Boudaïeva and Others v. Russia, CE:ECHR:2008:0320JUD001533902, § 190) and that, even if no remedy offered by domestic law by itself satisfies the requirements of Article 13 of the ECHR, the aggregate of remedies provided for under domestic law may do so (European Court of Human Rights, 10 July 2020, Mugemangango v. Belgium, CE:ECHR:2020:0710JUD000031015, § 131 and the case-law cited).
56
Furthermore, in the event of an infringement of the right to respect for the home, enshrined in Article 8 of the ECHR, a remedy is effective, within the meaning of Article 13 of the ECHR, if the applicant has access to a procedure enabling them to contest the lawfulness of the searches and seizures and obtain appropriate redress if they were unlawfully ordered or executed (European Court of Human Rights, 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 84).
57
In that regard, it is apparent from the case-law of the European Court of Human Rights relating to Article 6(1) or Article 8 of the ECHR that, in relation to inspections of private premises, the failure by a judge to grant prior authorisation for inspection, who could have circumscribed or reviewed the conduct of that inspection, may be counterbalanced by ex post facto judicial review of the legality and necessity of such a measure of inquiry, provided that that review is effective in the particular circumstances of the case in question. This means that the persons concerned must be able to obtain effective judicial review, both in fact and in law, of the measure at issue and its conduct; where an operation found to be irregular has already taken place, the remedy or remedies available must provide the person concerned with appropriate redress (European Court of Human Rights, 2 October 2014, Delta Pekárny a.s. v. The Czech Republic, CE:ECHR:2014:1002JUD000009711, § 86 and § 87 and the case-law cited).
58
Thus, since ex post judicial review of the inspection may, under certain conditions, counterbalance the absence of prior judicial review and appropriate redress must be provided by ‘the remedy or remedies available’, it must be held that, in principle, account should be taken of all the remedies available in order to determine whether the requirements of Article 47 of the Charter are met.
59
Furthermore, since the appellants alleged, by means of an objection, the illegality of Article 20 of Regulation No 1/2003, the General Court, as the Advocate General observed in point 51 of his Opinion, was required, in order to rule on that objection, to carry out an overall assessment of the system of judicial review of the measures taken in the context of inspections, going beyond the particular circumstances of the case in question.
60
In those circumstances, it must be held that the appellants are wrong to claim that the General Court erred in law by carrying out an overall analysis of all the legal remedies available to challenge the conduct of the inspections.
61
As regards the appellants’ argument that the General Court could not balance the disadvantages of a remedy against the measures taken in the context of an inspection against the advantages of an action challenging the legality of the inspection decision, it is sufficient to note, as the Advocate General did in points 46 and 47 of his Opinion, that that argument is based on a misreading of the judgment under appeal. It is clear from paragraphs 90 to 98 of that judgment that the General Court examined to what extent the various remedies available to the appellants, including an action against the inspection decision, made it possible to bring before a court complaints relating to the lawfulness of the conduct of the inspection, and therefore to what extent, despite the absence of one single legal remedy, that conduct was amenable to effective judicial review, in accordance with the case-law cited in paragraphs 55 to 57 of the present judgment.
62
Lastly, as regards the appellants’ argument that, if the General Court had carried out a separate examination of the various legal remedies, it should have, on the one hand, rejected three of the six remedies which it acknowledged as being effective, namely the action against the decision closing the procedure under Article 101 TFEU, the action against the inspection decision and, lastly, the action for non-contractual damages and, on the other hand, held that all the other legal remedies are partial, it is sufficient to note that that argument must be rejected, since it is based on the incorrect premiss that the General Court could not carry out an overall analysis of all the legal remedies available for challenging the conduct of inspections.
63
The first complaint in the second part of the first ground of appeal must therefore be rejected.
64
As regards the second and third complaints, alleging that the General Court, in holding that partial remedies the availability of which is not clear are effective, places the burden on the undertaking concerned to create the conditions enabling the exercise of those remedies, the certainty of which is not established, it is sufficient to note, first, that, according to the case-law of the European Court of Human Rights referred to in paragraph 57 of the present judgment, it is not necessary that all the complaints which may be raised against the measures taken by the public authority on the basis of the decision ordering the inspection be so in the context of one and the same remedy and, second, as the Advocate General observed, in essence, in point 66 of his Opinion, the absence of established judicial practice cannot be decisive for denying the effectiveness of a remedy.
65
It follows that those complaints are unfounded.
66
It follows from the foregoing that the first ground of appeal must be rejected in its entirety as unfounded.
The third ground of appeal, alleging an error of law as regards the procedural regularity of the indicia justifying the inspections
Arguments of the parties
67
By the third ground of appeal, the appellants complain, in essence, that the General Court erred in law and infringed Regulation No 1/2003, first, by holding, in paragraph 193 of the judgment under appeal, that the Commission is not required to comply with the rules governing its powers of investigation, in particular the obligation to record interviews, resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, where no investigation has yet been formally initiated, and, secondly, by refusing, in paragraph 206 of the judgment under appeal, to reject the indicia obtained through interviews with suppliers as vitiated by a procedural irregularity.
68
They submit that the General Court was wrong to hold, in paragraphs 189, 192, 193, 196 and 198 of the judgment under appeal, that the assessment of the sufficiently serious nature of the indicia in the Commission’s possession must take account of the fact that the inspection decision forms part of the preliminary investigation stage, before any investigation, within the meaning of Chapter V of Regulation No 1/2003, has yet been formally initiated, thus justifying the Commission not being required to comply with certain mandatory rules of that regulation, including those relating to the obligation to record the interviews through which those indicia are obtained. They criticise the distinction thus drawn by the General Court between the measures subsequent to the formal opening of an investigation, which are governed by Regulation No 1/2003, and those predating that opening, which do not fall within the scope of that regulation.
69
By the first part of the third ground of appeal, the appellants claim that that distinction is based on a misreading of the case-law cited in paragraph 194 of the judgment under appeal. That case-law draws a distinction between the investigation stage preceding the statement of objections and the remainder of the administrative procedure. In addition, that case-law defines the starting point not of the investigation, but of the period to be taken into consideration in order to determine whether the duration of the procedure was reasonable.
70
By the second part of the third ground of appeal, the appellants submit that the General Court erred in law in holding, in paragraph 193 of the judgment under appeal, that Regulation No 1/2003 did not apply before the adoption of a first inspection decision.
71
The appellants argue that it follows from recital 25 of Regulation No 1/2003 and Article 2(3) of Regulation No 773/2004 that Regulation No 1/2003 applies to all measures adopted by the Commission pursuant to Articles 101 and 102 TFEU, from the time of the detection of the practices concerned. They maintain, in that regard, that the latter regulation applies to investigations into sectors and to leniency statements, without any measure involving an accusation of the commission of an infringement having been adopted by the Commission. Excluding investigative measures carried out before an inspection decision from the scope of application of Regulation No 1/2003 would risk depriving undertakings and third parties of their procedural rights and of their right to an effective judicial remedy against such a decision.
72
By the third part of the third ground of appeal, the appellants challenge the distinction drawn by the General Court, in paragraph 193 of the judgment under appeal, between the evidence of an infringement and the indicia forming the basis of an inspection decision, a distinction according to which the indicia cannot be subject to the same degree of formality as the evidence. In the appellants’ submission, the indicia and the evidence must be subject to the same degree of formality and the same procedural rules intended to ensure the authenticity, reliability and credibility of the material.
73
The Commission disputes those arguments.
74
As a preliminary point, the Commission states that the opening of the investigation differs from the opening of a file and from the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004. The opening of the investigation takes place from the time of the first use of its investigative powers and the adoption of measures involving an accusation of the commission of an infringement and having significant implications for the situation of the suspected entities. The opening of the file is an internal act taken by the Registry of the Commission’s Directorate-General for Competition when it assigns a case number, the sole scope of which is to store documents. The initiation of proceedings corresponds to the date on which the Commission adopts a decision under Article 2 of Regulation No 773/2004 with a view to taking a decision under Chapter III of Regulation No 1/2003.
75
That said, the Commission submits, in the first place, that it is not required to comply with the procedural rules of Regulations No 1/2003 and No 773/2004 before the opening of an investigation.
76
First, the Commission denies that such an obligation follows from the case-law and contends that the General Court did not distort the case-law cited in paragraph 194 of the judgment under appeal. The fact that that case-law concerns the assessment of the reasonable duration of the procedure is irrelevant in that regard.
77
Second, the Commission contends that it is not apparent from Regulations No 1/2003 and No 773/2004 that it is required to comply with the procedural rules of those regulations even before it has opened an investigation.
78
Moreover, the appellants’ argument, based on Article 2(3) of Regulation No 773/2004, is the result of confusion between the initiation of the investigation and the opening of proceedings, which take place at different times and have distinct legal consequences.
79
Furthermore, in the Commission’s submission, the references made by the appellants both to recital 25 of Regulation No 1/2003 and to sectoral inquiries or leniency statements are irrelevant.
80
Third, the appellants cannot claim that allowing the Commission to disregard the procedural rules of Regulations No 1/2003 and No 773/2004 before the opening of the investigation would undermine their right to an effective remedy enabling the legality of inspection decisions to be reviewed in law and in fact. That assertion is contradicted by the review of the indicia carried out in the present case by the General Court, which led to the partial annulment of the decisions at issue. Furthermore, even where oral testimony has not been recorded, the General Court has the possibility of hearing witnesses, under Article 94 of its Rules of Procedure.
81
Applying the procedural rules of Regulations No 1/2003 and No 773/2004 prior to the opening of the investigation would prejudice the Commission’s implementation of competition law, by preventing it from collecting and using indicia received orally. Preventing the Commission from gathering indicia in oral form would compromise the effectiveness of the investigations by delaying the date of inspections.
82
In the second place, the Commission submits, first of all, that, since the purpose of the inspection is to gather the information necessary to verify the existence and scope of the suspected infringement on the basis of the indicia in its possession, the indicia are necessarily subject to a lesser degree of formality than the evidence and, in particular, it is not required to record such indicia under Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.
83
Next, the Commission maintains that to make the indicia subject to a lesser degree of formality than the evidence makes it possible to reconcile, on the one hand, the need for speed which guides the adoption of inspection decisions and the effectiveness of the Commission’s investigation and, on the other hand, the safeguarding of the rights of defence of the undertakings concerned.
84
Lastly, the authenticity of evidence is not a necessary prerequisite for its credibility. The Court has noted in paragraphs 65 to 69 of the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773), that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced lies in its credibility. Consequently, the probative value of evidence must be assessed as a whole, so that raising mere unsubstantiated doubts as to the authenticity of evidence is not sufficient to undermine its credibility. Those principles apply a fortiori to indicia whose probative value is, by definition, lower.
Findings of the Court
85
By the third ground of appeal, in its three parts, the appellants complain, in essence, that the General Court erred in law, in paragraph 193 of the judgment under appeal, in finding that the Commission is not required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 before it has formally opened an investigation and made use of the powers of investigation conferred on it in particular by Articles 18 to 20 of Regulation No 1/2003.
86
It should be borne in mind in that regard that, in accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording but also of its surrounding context and the objectives and purpose pursued by the act of which it forms part (judgment of 1 August 2022, HOLD Alapkezelő, C‑352/20, EU:C:2022:606, paragraph 42 and the case-law cited).
87
In the first place, it is apparent from the very wording of Article 19(1) of Regulation No 1/2003 that that regulation is intended to apply to any interview involving the collection of information relating to the subject matter of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 84).
88
Article 3 of Regulation No 773/2004, which makes interviews based on Article 19(1) of Regulation No 1/2003 subject to compliance with certain procedural rules, does not specify the scope of the latter provision.
89
It must be borne in mind that the Court of Justice has held that, under Article 19(1) of Regulation No 1/2003 and Article 3(3) of Regulation No 773/2004, the Commission is required to record, in a form of its choosing, any interview which it conducts, under Article 19 of Regulation No 1/2003, for the purpose of collecting information relating to the subject matter of an investigation (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 90 and 91).
90
Accordingly, it is important to note that a distinction must be drawn on the basis of the subject matter of the interviews carried out by the Commission, and that only those seeking to collect information relating to the subject matter of a Commission investigation fall within the scope of Article 19(1) of Regulation No 1/2003 and, therefore, the obligation to record.
91
That said, there is nothing in the wording of Article 19(1) of Regulation No 1/2003 or Article 3 of Regulation No 773/2004 to suggest that the application of that recording obligation is contingent on whether the interview conducted by the Commission took place before the formal opening of an investigation in order to collect indicia of an infringement, or afterwards, for the purpose of gathering evidence of an infringement.
92
Those provisions do not in any way make the application of the obligation to record contingent on whether the information constituting its subject matter may be categorised as indicia or evidence. On the contrary, because of the generic nature of the term ‘information’ in Article 19(1) of Regulation No 1/2003, it must be held that that provision applies without distinction to each of those categories.
93
It is true that the concepts of ‘indicia’ and ‘evidence’ must not be conflated since, by their very nature and unlike evidence, indicia cannot suffice to establish a given fact.
94
The fact remains, however, that the classification of indicia or evidence depends not on a specific stage of the procedure, but on the probative value of the information concerned, since sufficiently serious and convergent indicia, gathered together as a ‘bundle’, can themselves prove an infringement and be used in the Commission’s final decision adopted on the basis of Article 101 TFEU (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47).
95
Therefore, as the Advocate General observed in point 141 of his Opinion, the obligation to record interviews cannot depend on the categorisation of the information collected as indicia or evidence, since the probative value of that information can be assessed by the Commission only at the end of those interviews, during the subsequent stages of the procedure.
96
Furthermore, nor do Article 19(1) of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 provide that the application of the obligation to record depends on the stage of the procedure at which the interviews are conducted. It is true that Article 19(1) of Regulation No 1/2003 provides that interviews based on that provision are those conducted for the purpose of collecting information relating to the subject matter of an investigation, which presupposes that an investigation is ongoing. Yet it is not apparent from that provision that those interviews must take place after the formal opening of an investigation, held by the General Court in paragraph 193 of the judgment under appeal to be the moment when the Commission adopts a measure involving an accusation of the commission of an infringement.
97
In the second place, as regards the context of Article 19(1) of Regulation No 1/2003, it should be noted, first, that that article appears in Chapter V of that regulation, concerning the Commission’s powers of investigation. However, the application of the provisions of that chapter is not necessarily subject to the adoption, by that institution, of a measure involving the accusation of the commission of an infringement.
98
Thus, under Article 17 of that regulation, the Commission may conduct sectoral inquiries, which do not require prior adoption of such measures in respect of undertakings.
99
It should also be noted that Article 2(3) of Regulation No 773/2004, under which ‘the Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings’ supports the interpretation that the provisions relating to the Commission’s powers of investigation listed in that chapter – including Article 19 – may apply before an investigation has been formally initiated, contrary to what is stated in paragraph 193 of the judgment under appeal.
100
It is true that, in the cases which gave rise to the judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 182), and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 38), cited in paragraph 194 of the judgment under appeal, the Court of Justice identified the starting point of the preliminary investigation conducted by the Commission in the field of competition as being the date on which that institution, exercising the powers conferred on it by the EU legislature, takes measures involving an accusation of the commission of an infringement and having significant implications for the situation of the undertakings suspected.
101
However, the cases giving rise to those judgments concerned the determination of the starting point of the administrative procedure for the purpose of verifying whether the Commission complied with the principle that proceedings must be concluded within a reasonable time. That verification requires an examination of whether that institution acted diligently from the date on which it informed the undertaking suspected of having committed an infringement of EU competition law of the existence of an investigation.
102
Nonetheless, that date cannot be taken into consideration in order to determine the starting point from which the Commission is required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004. As observed by the Advocate General in point 150 of his Opinion, an undertaking may be the subject of statements made by third parties obtained during such interviews, without being aware of them. Therefore, to take that date into consideration would be tantamount to postponing the application of the recording obligation and the procedural guarantees attaching thereto, laid down in those provisions for the benefit of the third parties interviewed and the undertaking suspected, until the Commission adopts a measure informing that undertaking of the existence of suspicions concerning it. As a result of that postponement, interviews with third parties carried out prior to such a measure would be excluded from the scope of the obligation to record interviews and the procedural safeguards applicable to them.
103
In the third and last place, as regards the purpose of Regulation No 1/2003, it is apparent from recital 25 of that regulation that the detection of infringements of the competition rules is becoming increasingly difficult, since Article 19(1) of Regulation No 1/2003 seeks to supplement the Commission’s powers of investigation by, inter alia, allowing it to interview any person who may be in possession of useful information and to record its statements (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 85). The expression ‘detection of infringements’ in that recital supports the interpretation that interviews conducted by the Commission, at a preliminary stage for the purpose of gathering indicia relating to the subject matter of an investigation also fall within the scope of Article 19(1) of Regulation No 1/2003.
104
It should also be noted that, under Article 3(3) of Regulation No 773/2004, the Commission may record interviews in any form. The Commission cannot therefore validly maintain that imposing an obligation to record on it prevents it from gathering and using indicia where they can only be in oral form and would undermine the effectiveness of the investigations by delaying the date of the inspection. Similarly, nor can the Commission maintain that such an obligation has a deterrent effect since it is able to protect the identity of the persons interviewed.
105
In those circumstances, it must be held that the General Court erred in law in holding, in paragraph 193 of the judgment under appeal, that it was necessary to exclude from the scope of Regulation No 1/2003 those interviews in the course of which indicia were collected that subsequently served as the basis for a decision ordering an inspection of an undertaking, on the ground that no investigation within the meaning of Chapter V of that regulation was then opened, since the Commission did not adopt a measure involving an accusation with regard to that undertaking of having committed an infringement. In order to determine whether those interviews fell within that scope, the General Court should have examined whether they were intended to collect information relating to the subject matter of an investigation, taking into account their content and context.
106
In the present case, as is apparent from paragraphs 205 and 206 of the judgment under appeal, the General Court held that the indicia obtained through interviews with suppliers could not be rejected as vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, in particular because those interviews took place before the opening of an investigation under Regulation No 1/2003 and they did not involve, with respect to the appellants and a fortiori in respect of the suppliers, any accusation whatsoever of the commission of an infringement.
107
As observed by the Advocate General in point 155 of his Opinion, suffice it to observe in that regard that, when the Commission conducts interviews, the subject matter of which is defined in advance and whose purpose is openly to obtain information on the functioning of a given market and the conduct of operators on that market with a view to detecting possible unlawful conduct or substantiating its suspicions as to the existence of such conduct, the Commission exercises its power to gather statements under Article 19 of Regulation No 1/2003.
108
Consequently, the interviews with suppliers fell within the scope of Article 19(1) of Regulation No 1/2003 and the Commission was required to record those declarations in accordance with Article 3 of Regulation No 773/2004.
109
It follows that the General Court erred in law in finding, in paragraph 206 of the judgment under appeal, that the obligation to record, provided for in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, did not apply to interviews with suppliers and that the indicia obtained through those interviews were not vitiated by a procedural irregularity.
110
It follows from all the foregoing that the three parts of the third ground of appeal are well founded and that, consequently, the appeal must be upheld and point 2 of the operative part of the judgment under appeal set aside in so far as the General Court dismissed the remainder of the action against the decisions at issue, without its being necessary to rule on the other grounds of appeal. Consequently, point 3 of the operative part of the judgment under appeal, relating to costs, must also be set aside.
The action before the General Court
111
In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court sets aside the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
112
That is so in the present case.
113
It is therefore necessary to examine the complaint, put forward by the appellants before the General Court in the context of their plea relating to the infringement of the right to the inviolability of the home, alleging, in essence, that the indicia obtained through interviews with suppliers must be rejected because of the Commission’s failure to comply with Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.
114
In support of that complaint, the appellants submit that the minutes of the interviews with suppliers were not recordings complying with those provisions, since, inter alia, they had not been made available to the persons interviewed for approval.
115
The Commission contends that it fulfilled its obligation to record by drawing up exhaustive minutes that faithfully reflected the content of the suppliers’ statements and placing them in the file under an official identification number. That type of minutes is one of the forms of recording which Article 3(3) of Regulation No 773/2004 allows the Commission to use, in the same way as it may use an audio or audiovisual recording or a verbatim retranscription.
116
In that regard, it should be noted that the first sentence of Article 3(3) of Regulation No 773/2004, which states that the Commission ‘may record the statements made by the persons interviewed in any form’, implies that, if the Commission decides, with the consent of the person interviewed, to conduct an interview on the basis of Article 19(1) of Regulation No 1/2003, it must record the interview in full, without prejudice to the fact that the Commission is free to decide on the type of recording (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 90).
117
In addition, it is apparent from the second and third sentences of Article 3(3) of Regulation No 773/2004 that the Commission must make a copy of the recording available to the person interviewed for approval and that, where necessary, it must set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.
118
In the present case, the Commission has not alleged, still less proved, that it made the minutes which it had drawn up available to suppliers for approval.
119
The Commission’s obligation to make a copy of the recording available to the person interviewed for approval, provided for in Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, is intended, in particular, to ensure the authenticity of the statements made by the person interviewed, by ensuring that those statements must actually be attributed to him or her and that their content faithfully and fully reflects those statements and not the Commission’s interpretation of them.
120
Therefore, indicia obtained from a statement gathered by the Commission, without compliance with that requirement, imposed by Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, must be regarded as inadmissible and therefore be disregarded.
121
Thus, those purely internal minutes cannot be regarded as satisfying the requirements of Article 3(3) of Regulation No 773/2004, which applies to interviews falling within the scope of Article 19 of Regulation No 1/2003.
122
That finding cannot be invalidated by paragraphs 65 to 69 of the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773).
123
It is true that the Court of Justice has held that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced lies in its credibility and that, consequently, the probative value of evidence must be assessed as a whole, so that raising mere unsubstantiated doubts as to the authenticity of evidence is not sufficient to undermine its credibility (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 65 to 69).
124
However, in the case which gave rise to that judgment, the evidence whose authenticity was called into question was an internal email of an undertaking and not the recording of a statement collected by the Commission vitiated by an infringement of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004.
125
Thus, the principle of the unfettered assessment of evidence cannot be relied on in order to avoid the procedural rules applicable to the recording of statements obtained by the Commission under Article 19 of Regulation No 1/2003. In that regard, it should be noted that the finding of an irregularity in the collection of indicia, in the light of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, lies in the fact that the Commission may not use those indicia in the subsequent stages of the procedure (see, by analogy, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 45 and the case-law cited).
126
In the present case, since, as observed by the Advocate General in point 208 of his Opinion, the information obtained through the interviews with suppliers constituted the essential elements of the indicia on which the decisions at issue are based and is vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record provided for in Article 3 of Regulation No 773/2004, it must be held that, on the date of adoption of the decisions at issue, the Commission did not have in its possession sufficiently serious indicia that it was entitled to use and that justified the presumptions set out in Article 1(a) of those decisions. In the light of all the foregoing considerations, those decisions must be annulled in their entirety.
Costs
127
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
128
Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, 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 appellants have applied for costs and the Commission has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by the appellants in the present appeal. Furthermore, since the decisions at issue are annulled, the Commission is ordered to pay all the costs incurred by the appellants in the proceedings at first instance.
129
Under Article 184(4) of the Rules of Procedure of the Court of Justice, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless they participated in the written or oral part of the proceedings before the Court of Justice. Where that intervener takes part in the proceedings, the Court may decide that that party shall bear its own costs. Since the Council, intervener at first instance, participated in the written and oral part of the procedure before the Court, it must be ordered to bear its own costs relating both to the appeal proceedings and to the proceedings at first instance.
On those grounds, the Court (First Chamber) hereby:
1.
Sets aside point 2 of the operative part of the judgment of the General Court of the European Union of 5 October 2020, Les Mousquetaires and ITM Entreprises v Commission (T‑255/17, EU:T:2020:460), in so far as it dismissed the remainder of the action brought by the appellants against Commission Decision C(2017) 1057 final of 9 February 2017 ordering Intermarché and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1) and Commission Decision C(2017) 1361 final of 21 February 2017 ordering Les Mousquetaires and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1);
2.
Sets aside point 3 of the operative part of the judgment of the General Court of the European Union of 5 October 2020, Les Mousquetaires and ITM Entreprises v Commission (T‑255/17, EU:T:2020:460), in so far as it ruled on costs;
3.
Annuls Commission Decision C(2017) 1057 final of 9 February 2017 ordering Intermarché and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1) and Commission Decision C(2017) 1361 final of 21 February 2017 ordering Les Mousquetaires and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466 – Tute 1);
4.
Orders the European Commission to bear its own costs and to pay those incurred by Les Mousquetaires SAS and by ITM Entreprises SAS, both at first instance and in the appeal proceedings;
5.
Orders the Council of the European Union to bear its own costs, both at first instance and in the appeal proceedings.
[Signatures]
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)	Language of the case: French.