Case T‑296/11
Cementos Portland Valderrivas, SA
v
European Commission
(Competition — Administrative procedure — Decision requesting information — Need for the information requested — Reasonable grounds — Review by the Court — Proportionality)
Summary — Judgment of the General Court (Seventh Chamber), 14 March 2014
1.      Competition — Administrative procedure — Observance of the rights of the defence — Preliminary investigation stage before the sending of the statement of objections — Compliance with the general principle of EU law requiring protection against arbitrary or disproportionate intervention by the public authorities — Obligation on the Commission to be in possession of reasonable grounds for suspecting breach of the competition rules — Assessment of the reasonableness of the grounds
(Art. 101 TFEU; Council Regulation No 1/2003, Art 18(3))
2.      Competition — Administrative procedure — Request for information — Indication of the legal basis and the purpose of the request — Requirement of a necessary link between the information requested and the infringement investigated — Commission’s margin of discretion — Judicial review — Scope
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(3))
3.      Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Inadmissibility
(Rules of Procedure of the General Court, Art. 44(1)(c))
4.      Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Requirement of a necessary link between the information requested and the infringement investigated — Public character of the information requested
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(1))
5.      Competition — Administrative procedure — Request for information — Powers of the Commission — Power to make a request requiring the marshalling of the requested information — Limits
(Council Regulation No 1/2003, Art. 18)
6.      Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Observance of the principle of proportionality — Time limit for reply imposed on the undertaking — Assessment of proportionality
(Council Regulation No 1/2003, Art. 18(3))
1.      The measures of inquiry adopted by the Commission during the preliminary investigation stage of the administrative procedure under Regulation No 1/2003 — in particular, the investigation measures and the requests for information — suggest, by their very nature, that an infringement has been committed and may have major repercussions on the situation of the undertakings under suspicion. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable.
In that regard, the Commission cannot be required to indicate at the preliminary investigation stage — besides the putative infringements it intends to investigate — the evidence, that is to say the information leading it to consider that Article 101 TFEU may have been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the defence rights of the undertaking concerned.
However, it cannot be inferred from the foregoing that the Commission does not have to be in possession of information leading it to consider that Article 101 TFEU may have been infringed before adopting a decision under Article 18(3) of Regulation No 1/2003.
The need for protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union. With a view to observing that general principle, a decision requesting information must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules.
In that regard, the assessment of the reasonableness of the grounds must be carried out having regard to the fact that the contested decision forms part of the preliminary investigation stage, which is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. In order to perform that task, the Commission is entitled to send requests for information pursuant to Article 18 of Regulation No 1/2003 or to have recourse to inspections under Article 20 thereof. Accordingly, at that stage — before the adoption of a decision requesting information — the Commission cannot be required to be in possession of evidence establishing the existence of an infringement. It is therefore enough for such evidence to give rise to a reasonable suspicion as to the commission of putative infringements in order for the Commission to be entitled to request the provision of additional information by way of a decision adopted under Article 18(3) of Regulation No 1/2003.
(see paras 35, 37-40, 43)
2.      The obligation imposed on the Commission by Article 18(3) of Regulation No 1/2003 requiring it to state the legal basis and the purpose of the request for information is a fundamental requirement designed not merely to show that the information requested from the undertakings concerned is justified, but also to enable those undertakings to ascertain the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence. It follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate the putative infringements which justify the conduct of the investigation and are set out in the request for information.
In the light of the Commission’s broad powers of investigation and inspection, it falls to it to assess the necessity of the information requested from the undertakings concerned. As regards the Court’s power of review over that assessment by the Commission, the term ‘necessary information’ must be interpreted according to the objectives for the achievement of which the powers of investigation in question have been conferred upon the Commission. Thus, the requirement that there must exist a correlation between the request for information and the putative infringement is satisfied where, at that stage in the proceeding, the request may legitimately be regarded as having a connection with the putative infringement, in the sense that the Commission may reasonably suppose that the document will help it to determine whether the alleged infringement has taken place.
(see paras 36, 66)
3.      See the text of the decision.
(see para. 64)
4.      Information such as postal codes relating to a specific address, whilst accessible to the Commission without it having to order its production, constitute the logical complement of information in the applicant’s sole possession. Therefore, the fact that the information might be public is not capable of precluding it from being regarded as necessary within the meaning of Article 18(1) of Regulation No 1/2003.
(see para. 74, 75)
5.      Since the provision of ‘information’ within the meaning of Article 18 of Regulation No 1/2003 should be understood as covering not only the production of documents, but also the obligation to answer questions relating to those documents, the Commission is not confined merely to requesting the production of existing information irrespective of any involvement of the undertaking concerned. It is therefore open to the Commission to direct questions at an undertaking even if this means that the latter has to marshal the requested information.
However, the exercise of this prerogative is subject to the observance of at least two principles. First, the questions directed at an undertaking cannot force it to admit that it has committed an infringement. Second, the provision of answers to those questions must not constitute a burden which is disproportionate to the requirements of the investigation.
(see para. 80, 81)
6.      Requests for information made by the Commission to an undertaking must comply with the principle of proportionality and the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the inquiry.
For the purpose of assessing the possible disproportionality of the burden entailed by the requirement to answer the questions within the time limit set by the Commission, account must be taken of the fact that the addressee of a decision requesting information under Article 18(3) of Regulation No 1/2003 runs the risk not only of receiving a fine or periodic penalty payment if it supplies incomplete or belated information or if it fails to provide information, pursuant to Article 23(1)(b) and Article 24(1)(d) of Regulation No 1/2003, respectively, but also of being fined if it supplies information which the Commission considers to be incorrect or ‘misleading’, pursuant to Article 23(1)(b) of that regulation.
It can be inferred from the above that the examination of the appropriateness of the time limit fixed in a decision requesting information is particularly important. That time limit must enable the addressee of the decision not only to provide its reply in practical terms, but also to ensure that the information supplied is complete, correct and not misleading.
(see paras 86, 96, 97)