62011TJ0297_EN
Parties
Grounds
Operative part
Parties
In Case T‑297/11,
Buzzi Unicem SpA,
established in Casale Monferrato (Italy), represented by C. Osti and A. Prastaro, lawyers,
applicant,
v
European Commission,
represented initially by B. Gencarelli, L. Malferrari and C. Hödlmayr, and subsequently by L. Malferrari and C. Hödlmayr, acting as Agents, assisted by M. Merola, lawyer,
defendant,
APPLICATION for annulment of Commission Decision C(2011) 2356 final of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003 (Case 39520 — Cement and related products),
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 26 April 2013,
gives the following
Judgment
Grounds
Facts of the dispute
1. In October 2008, the Commission of the European Communities — acting under Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) — carried out a number of inspections at the premises of companies active in the cement industry, including the premises of the applicant, Buzzi Unicem SpA, and those of Dyckerhoff AG and Cimalux SA, two companies that the applicant directly or indirectly controls.
2. On 30 September 2009, the Commission sent the applicant a request for information comprising two questionnaires. The first questionnaire related to documents seized during the inspections. In the second questionnaire annexed to the request for information, the Commission sent the applicant an initial list of 57 questions (‘the initial questions’). On 11 January 2010, the applicant received a further request for information under Article 18(2) of Regulation No 1/2003.
3. On 5 November 2010, the Commission notified the applicant that it intended to send the latter a decision requesting information under Article 18(3) of Regulation No 1/2003 and forwarded the draft questionnaire it planned to annex to that decision.
4. On 17 November 2010, the applicant submitted its observations on the draft questionnaire.
5. On 6 December 2010, the Commission notified the applicant that it had decided to initiate proceedings against it under Article 11(6) of Regulation No 1/2003 as well as against seven other companies active in the cement industry for suspected infringements of Article 101 TFEU involving ‘restrictions on trade flows in the European Economic Area (EEA), including restrictions on imports in the EEA coming from countries outside the EEA, market-sharing, price coordination and related anti-competitive practices in the cement market and related product markets’ (‘the decision to initiate proceedings’).
6. On 30 March 2011, the Commission adopted Decision C(2011) 2356 final in proceedings pursuant to Article 18(3) of Regulation No 1/2003 (Case 39520 — Cement and related products) (‘the contested decision’).
7. In the contested decision, the Commission stated that, under Article 18 of Regulation No 1/2003, in order to carry out the duties assigned to it by that regulation, it may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information (recital 3 of the preamble to the contested decision). After pointing out that the applicant had been informed of the Commission’s intention to adopt a decision under Article 18(3) of Regulation No 1/2003 and that the former had submitted its observations on the draft questionnaire (recitals 4 and 5 of the preamble to the contested decision), the Commission, by decision, required the applicant — as well as its subsidiaries located in the European Union under its direct or indirect control — to answer the questionnaire set out in Annex I, comprising 79 pages and 11 sets of questions (recital 6 of the preamble to the contested decision).
8. The Commission also drew attention to the description of the alleged infringements, set out in paragraph 5 above (recital 2 of the preamble to the contested decision).
9. Referring to the nature and volume of information requested, as well as the seriousness of the alleged infringements of the competition rules, the Commission considered it appropriate to give the applicant 12 weeks to reply to the first 10 sets of questions and 2 weeks to reply to the 11th set, concerning ‘contacts and meetings’ (recital 8 of the contested decision).
10. The operative part of the contested decision reads as follows:
‘ Article 1
[The applicant], together with its subsidiaries located in the European Union under its direct or indirect control, shall provide the information referred to in Annex I to this decision, in the form requested in Annexes II and III thereto, no later than twelve weeks, for questions 1-10, and two weeks, for question 11, from the date of notification of this decision. Both annexes form an integral part of this decision.
Article 2
This decision is addressed to [the applicant,] together with its subsidiaries located in the European Union under its direct or indirect control …’
Procedure and forms of order sought by the parties
11. By application lodged at the Registry of the General Court on 10 June 2011, the applicant brought this application for annulment of the contested decision.
12. By separate document lodged at the Registry on the same day, the applicant applied for the case to be decided under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the General Court.
13. By decision of 14 September 2011, the General Court (Seventh Chamber) rejected that application.
14. Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure.
15. At the hearing held on 26 April 2013, the parties presented their oral arguments and answered the oral questions of the Court.
16. The applicant claims that the Court should:
– annul the contested decision in whole or in part;
– order the Commission to pay the costs.
17. The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
18. In support of its action, the applicant relies on five pleas in law essentially alleging, first, failure to state reasons or to state adequate reasons for the contested decision and infringement of the rights of the defence, second, ultra vires and misuse of powers when adopting the contested decision and reversal of the burden of proof, third, infringement of Article 18 of Regulation No 1/2003, fourth, infringement of the principle of proportionality and, fifth, infringement by the Commission of its best practices for the submission of economic data and the principle of sound administration.
First plea in law, alleging failure to state reasons or to state adequate reasons for the contested decision and infringement of the rights of the defence
19. Primarily, the applicant claims that the contested decision is vitiated by a failure to state reasons in that it does not contain any information on the subject and purpose of the request for information and that the statement of reasons cannot be replaced in its entirety by a reference to other measures. In the alternative, it submits that even if the content of the decision to initiate proceedings could be taken into account, the statement of reasons for the contested decision would still be inadequate, in the light of the overly general definition of the putative infringements it seeks to investigate. As for the other elements of the legal context to which the Commission refers, these cannot supplement the statement of reasons for the contested decision. The applicant considers that the inadequacy of the statement of reasons prevents it from assessing the necessity of the requested information and, therefore, from exercising its rights of the defence.
20. The Commission submits that the contested decision is sufficiently reasoned.
21. The purpose of the obligation to state reasons for individual decisions is to enable the courts to exercise their power to review the lawfulness of those decisions and to provide the persons concerned with sufficient information to ascertain whether the decision is well-founded or possibly vitiated by an error permitting the validity of the decision to be challenged, the scope of that obligation being dependent on the nature of the measure at issue and the context in which it was adopted as well as all of the legal rules governing the matter in question (Case 185/83 Interfacultair Instituut Electronenmicroscopie der Rijksuniversiteit te Groningen
[1984] ECR 3623, paragraph 38; Case T‑349/03 Corsica Ferries France v Commission
[2005] ECR II‑2197, paragraphs 62 and 63; and judgment of 12 July 2007 in Case T‑266/03 CB v Commission, not published in the ECR, paragraph 35).
22. Pursuant to settled case-law, the essential constituents of the statement of reasons for a decision requesting information are set out in Article 18(3) of Regulation No 1/2003 itself (see Joined Cases T‑458/09 and T‑171/10 Slovak Telekom v Commission [2012] ECR, paragraphs 76 and 77 and the case-law cited).
23. Article 18(3) of Regulation No 1/2003 provides that the Commission ‘shall state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided’. Moreover, it states that the Commission ‘shall also indicate the penalties provided for in Article 23’, that it ‘[shall] indicate or impose the penalties provided for in Article 24’, and that it ‘shall further indicate the right to have the decision reviewed by the Court of Justice’.
24. This delimitation of the obligation to state reasons is due to the nature of decisions requesting information as measures of inquiry.
25. It should be borne in mind that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up until the notification of the statement of objections, 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. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, to that effect, Case T‑99/04 AC-Treuhand
v Commission
[2008] ECR II‑1501, paragraph 47).
26. The starting point for the preliminary investigation stage is the date on which the Commission, in exercise of the powers conferred on it by Articles 18 and 20 of Regulation No 1/2003, takes measures which involve the allegation of an infringement and which have major repercussions on the situation of the undertakings under suspicion. It is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it (see, to that effect, AC-Treuhand
v Commission, paragraph 25 above, paragraph 48 and the case-law cited).
27. However, the measures of inquiry adopted by the Commission during the preliminary investigation stage — 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 (see, to that effect, Joined Cases 46/87 and 227/88 Hoechst v Commission
[1989] ECR 2859, paragraph 15, and AC-Treuhand v Commission, paragraph 25 above, paragraphs 50 and 51).
28. Against that background, it should be recalled that 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 (see, to that effect and by analogy, Case T‑39/90 SEP v Commission
[1991] ECR II‑1497, paragraph 25, and Case T‑34/93 Société Générale v Commission
[1995] ECR II‑545, paragraph 40).
29. As Advocate General Jacobs made clear in point 30 of his Opinion in Case C‑36/92 P SEP v Commission
[1994] ECR I‑1911, I‑1914, the obligat ion to state the purpose of the request means ‘of course that [the Commission] must identify the suspected infringement of the competition rules’, ‘[t]he necessity of the information must be judged in relation to the purpose stated in the request for information’ and ‘[t]he purpose must be indicated with reasonable precision, otherwise it will be impossible to determine whether the information is necessary and the Court will be prevented from exercising judicial review’.
30. It is also apparent from settled case-law that the Commission is not required to communicate to the addressee of such a decision all the information at its disposal concerning presumed infringements or to make a precise legal analysis of those infringements, although it must clearly indicate the presumed facts which it intends to investigate ( Société Générale v Commission, paragraph 28 above, paragraphs 62 and 63, and Slovak Telekom v Commission, paragraph 22 above, paragraph 77).
31. However, at the preliminary investigation stage the Commission cannot be required to indicate — 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.
32. In the present case, the contested decision clearly states that it was adopted on the basis of Article 18(3) of Regulation No 1/2003 and that the practices under investigation might infringe Article 101 TFEU. Recitals 10 and 11 of the preamble to the contested decision expressly refer to the penalties and the right of review mentioned in paragraph 23 above.
33. Thus, the question of whether or not the statement of reasons is adequate depends entirely on whether or not the putative infringements that the Commission intends to investigate are defined in sufficiently clear terms.
34. The reasons given in the contested decision in that respect are set out in a passage in recital 2 of the preamble to the contested decision, according to which ‘[t]he alleged infringements concern restrictions on trade flows in the European Economic Area (EEA), including restrictions on imports in the EEA coming from countries outside the EEA, market-sharing, price coordination and related anti-competitive practices in the cement market and related product markets’.
35. Furthermore, the contested decision expressly refers to the decision to initiate proceedings mentioned in paragraph 5 above, which contains additional information on the geographic extent of the putative infringements and the type of products covered.
36. The Court observes that the statement of reasons for the contested decision is formulated in very general terms which would have benefited from greater detail and warrants criticism in that regard. Nevertheless, it can be considered that the reference to restrictions on imports in the European Economic Area (EEA), to market-sharing and to price coordination in the cement market and related product markets, read in conjunction with the decision to initiate proceedings, have the minimum degree of clarity necessary to conclude that the requirements of Article 18(3) of Regulation No 1/2003 have been met.
37. It must therefore be inferred that the contested decision is sufficiently reasoned. In consequence, it must also be concluded that the applicant was in a position to assess the necessity of the requested information.
38. That conclusion is not affected by the applicant’s argument that the Commission failed to specify the period covered by its investigation. Indeed, under Article 18(3) of Regulation No 1/2003, the Commission is not required to state reasons in that regard.
39. This plea in law must therefore be rejected.
Second plea in law, alleging ultra vires and misuse of powers by the Commission and reversal of the burden of proof
40. The applicant considers that the Commission exceeded and misused its powers by adopting a purely exploratory decision, when decisions adopted under Article 18 of Regulation No 1/2003 should be used only to confirm the evidence already in the Commission’s possession. It claims that the Commission failed to specify the purpose of its request for information. Furthermore, the applicant takes the view that the changes made by the Commission to its different requests for information demonstrate that it was not in possession of evidence pointing to the existence of an infringement of competition law when it adopted the contested decision. The exploratory nature of the contested decision is also apparent from the Commission’s defence. In adopting that approach, the Commission also reversed the burden of proof, by requiring the undertakings concerned to provide it with evidence that will be used against them. The applicant submits that, in these circumstances, it was — if necessary — for the Commission to conduct a sectoral investigation pursuant to Article 17 of Regulation No 1/2003.
41. First, the Court finds that, in so far as the applicant complains — by means of this plea in law — that the Commission failed to specify the purpose of its request for information, the said plea is indissociable from the arguments submitted in the context of the first plea in law, alleging a failure to state reasons, and must, therefore, be rejected for the reasons set out in paragraphs 21 to 37 above.
42. Second, it should be noted that this plea in law also includes, in essence, a criticism of the arbitrary nature of the contested decision, on the ground that the Commission was not in possession of evidence tending to demonstrate the existence of an infringement of competition law before its adoption.
43. It is true that 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 ( Slovak Telekom v Commission, paragraph 22 above, paragraph 81).
44. Likewise, it should be noted that for the purpose of 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 (see, to that effect and by analogy, Case C‑94/00 Roquette Frères
[2002] ECR I‑9011, paragraphs 54 and 55).
45. However, the fact remains that the applicant confines itself to submitting a number of general criticisms regarding the conduct of the Commission during the administrative procedure. Thus, in the present case, in the absence of an express and reasoned application from the applicant, it is not appropriate for the Court to review — on its own initiative — whether the Commission had reasonable grounds warranting the adoption of the contested decision (see, to that effect, Case C‑276/11 P Viega v Commission
[2013] ECR, paragraphs 41 to 43).
46. Third, as a result of the foregoing, the criticism that the Commission misused its powers by adopting a decision on the basis of Article 18(3) of Regulation No 1/2003 instead of conducting a sectoral investigation must be rejected, the applicant having failed to show that the Commission exercised its powers under that provision for a different purpose.
47. Furthermore, it is important to note that recourse to a sectoral investigation under Article 17 of Regulation No 1/2003 is not necessarily less onerous for the applicant than a decision requesting information adopted under Article 18(3) of that regulation. Indeed, pursuant to Article 23(1)(b) of Regulation No 1/2003, the Commission is entitled to impose a fine if the undertaking in question supplies incorrect, incomplete or misleading information or does not supply information within the required time-limit in response to a decision adopted under Article 17 of Regulation No 1/2003. The same applies to the possibility of imposing periodic penalty payments pursuant to Article 24(1)(d) of that regulation. Therefore, the same coercive measures are available to the Commission in proceedings under Article 17 as under Article 18(3) of Regulation No 1/2003.
48. Fourth, the criticism that the Commission required the applicant to provide evidence that will be used against it, thereby reversing the burden of proof to its detriment, will be examined alongside the applicant’s arguments in the context of the third plea in law disputing the nature of the information requested, which are indissociable from that criticism.
49. Subject to that proviso, the second plea in law should be rejected.
Third plea in law and first limb of the fourth plea in law, alleging infringement of Article 18 of Regulation No 1/2003
50. In the context of its third plea in law, the applicant submits that the Commission infringed Article 18 of Regulation No 1/2003, which only entitles it to require the provision of factual information in the applicant’s possession which is necessary. First, questions 1D, 5R, 5S, 5T and 5V involve the provision of assessments and opinions and, therefore, go beyond the provision of factual information. The same can be said of the questions asking the applicant to evaluate certain distances (questions 1A, point Y, 1B, points AB and AC, 3, points AB and AC, and 4, point Y). Second, the Commission requested information which it admitted was not or could not be held by the undertaking concerned. Third, the applicant considers that the Commission requested information which it could have obtained by itself.
51. By the first limb of the fourth plea in law, the applicant submits that the contested decision was adopted in breach of Article 18(1) of Regulation No 1/2003, as it requests the provision of information which is not ‘necessary’ within the meaning of that provision.
52. The Commission contends that those two pleas should be rejected.
53. In so far as the third plea in law and the first limb of the fourth plea in law both allege infringement of Article 18 of Regulation No 1/2003, the Court considers it appropriate to examine them together.
Nature of the information requested
54. In its third plea in law, the applicant disputes the Commission’s entitlement to require it to answer questions which go beyond the provision of factual information or which relate to information that is not in its possession.
55. It should be recalled that, according to recital 23 of Regulation No 1/2003, the ‘Commission should be empowered throughout the [European Union] to require such information to be supplied as is necessary to detect any agreement, decision or concerted practice prohibited by Article [101 TFEU] or any abuse of a dominant position prohibited by Article [102 TFEU]’. Furthermore, ‘[w]hen complying with a decision of the Commission, undertakings cannot be forced to admit that they have committed an infringement, but they are in any event obliged to answer factual questions and to provide documents, even if this information may be used to establish against them or against another undertaking the existence of an infringement’.
56. Accordingly, 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 (see, to that effect and by analogy, the Opinion of Advocate General Darmon in Case 374/87 Orkem v Commission
[1989] ECR 3283, 3301, point 55).
57. However, it should be noted that the exercise of this prerogative is subject to the observance of at least two principles. First, as noted in recital 23 of Regulation No 1/2003, 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 ( SEP v Commission, paragraph 28 above, paragraph 51; Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission
[2003] ECR II‑3275, paragraph 418; and Slovak Telekom v Commission, paragraph 22 above, paragraph 81).
58. Since the potentially disproportionate nature of the burden entailed by answering the contested decision is disputed in the context of the second limb of the fourth plea in law, it is sufficient, at this stage, to determine whether certain questions might have forced the applicant to admit that it committed an infringement.
59. It is settled case-law that the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove ( Orkem v Commission, paragraph 56 above, paragraphs 34 and 35, and Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission
[2010] ECR II‑1255, paragraph 325).
60. The case-law also points out that an undertaking in receipt of a decision requesting information in accordance with Article 18(3) of Regulation No 1/2003 cannot be recognised as having an absolute right of silence. To acknowledge the existence of such a right would be to go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission’s performance of its duty to ensure that the rules on competition within the common market are observed. A right of silence can be acknowledged only to the extent that the undertaking concerned would be compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (see, to that effect and by analogy, Amann & Söhne and Cousin Filterie
v Commission, paragraph 59 above, paragraph 326).
61. In order to ensure the effectiveness of Article 18 of Regulation No 1/2003, the Commission is therefore entitled to compel the undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anti-competitive conduct. This power of the Commission to obtain information does not fall foul of either Article 6(1) and (2) of the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or the case-law of the European Court of Human Rights. Nor is it contrary to Articles 47 and 48 of the Charter of Fundamental Rights of the European Union (see, to that effect and by analogy, Amann & Söhne and Cousin Filterie v Commission, paragraph 59 above, paragraph 327).
62. The mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its request for the production of documents already in existence cannot constitute a breach of the fundamental principle of respect for the rights of the defence set out in Article 48(2) of the Charter of Fundamental Rights or impair the right to fair legal process laid down in Article 47 of the Charter of Fundamental Rights, which offer, in the specific field of competition law, protection equivalent to that guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. There is nothing to prevent the addressee of a request for information from showing, whether later during the administrative procedure or in proceedings before the European Union judicature, that the facts set out in its replies or the documents produced by it have a different meaning from that ascribed to them by the Commission (see, to that effect and by analogy, Amann & Söhne and Cousin Filterie v Commission, paragraph 59 above, paragraph 328).
63. Thus, an undertaking may not evade requests for production of documents on the ground that by complying with them it would be required to give evidence against itself (see, to that effect, Case C‑301/04 P Commission v SGL Carbon
[2006] ECR I‑5915, paragraph 48). As regards the answers to questions that the Commission is likely to send to undertakings, a distinction should be drawn between those which can be classified as purely factual and those which cannot. It is only if a question cannot be classified as purely factual that it must be ascertained whether such a question might involve an admission on the part of the undertaking concerned of the existence of an infringement which it is incumbent upon the Commission to prove.
64. First, it should be noted that questions 5R, 5S, 5T and 5V relate to the maximum production of CEM I, the total use of production capacity, the total use of grinding capacity and the annual production volume. As such, they are entirely factual.
65. Second, the Court considers that the same is true for questions 1A, point Y, 1B, point AB, 1B, point AC, 3, point AB, 3, point AC and 4, point Y, in so far as the assessment requested of the applicant of the distances to be travelled is entirely factual.
66. Third, question 1D is drafted as follows:
‘Based on the information supplied in the answers to the various questions set out in the questionnaire, describe the method your undertaking considered it appropriate to use to calculate the quarterly gross margins:
(1) for individual transactions;
(2) for transactions divided in accordance with the subdivision employed in the questions relating to domestic and export sales;
(3) by supply site.’
67. It is clear that, by this question, the Commission requires the applicant to state its views on the method that should be used to calculate the quarterly gross margins. Therefore, it cannot be classified as purely factual in so far as it asks the applicant to make an assessment. By doing so, it differs from question 1C preceding it, which is entirely factual in that what is requested is the disclosure of ‘all margins calculated by [the] undertaking in the context of its commercial activities for each target country’.
68. It must therefore be ascertained whether the answer to question 1D mig ht involve an admission on the part of the applicant of the existence of an infringement which it is incumbent upon the Commission to prove.
69. As a preliminary point, the Court notes that the Commission wrongly states that it was open to the applicant not to answer that question on the ground that Annex II, letter (a), paragraph (4) of the contested decision concerning the instructions for replying to the questionnaire in Annex I provides for the possibility of answering ‘UNK’, meaning ‘unknown’.
70. It is true that the fact that an undertaking is free to reply or not to a question put to it means that the Commission cannot be regarded as compelling that undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (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 455 and 456).
71. However, it should be recalled that that decision involved a question appearing in a simple request for information, a measure without binding force, in respect of which there is no ambiguity as regards the undertaking’s freedom not to reply.
72. No such ambiguity is present in this case. First, question 1D is drafted in imperative terms, suggesting that the applicant is required to reply. Second, it cannot be deduced from reading Annex II, letter (a), paragraph 4 of the contested decision that the possibility of not replying to question 1D was clearly offered to the applicant. Indeed, that paragraph states that the ‘general principle is that all information held by [the] undertaking must be provided’ and that it is only ‘if the information requested is not held by [that] undertaking in any form whatsoever [that it must] clearly and systematically identify the missing information in Excel spreadsheets, using the abbreviation “UNK” (unavailable/unknown)’. Therefore, it does not cover the situation where the undertaking does not wish to reply to a question put to it.
73. As to whether question 1D entails an infringement of the applicant’s defence rights, it is true that in a situation where the applicant is also required to produce factual information concerning its profit margins, the assessment it must provide under question 1D is effectively a commentary on the level of its profit margins, even though that may constitute evidence pointing to the existence of anti-competitive practices.
74. However, account should also be taken of the fact that the applicant may, at a later stage of the administrative procedure or in the course of an appeal against the Commission’s final decision, put forward an alternative interpretation of its answer to question 1D, an interpretation which differs from that adopted by the Commission.
75. In this connection, a distinction should be drawn between two types of situation.
76. First, if the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law (see Case C‑89/11 P E.ON Energie v Commission
[2012] ECR, paragraph 74 and the case-law cited). Questions which cannot be classified as purely factual and which entail an answer whose interpretation by the Commission may be disputed by the undertaking concerned in such a manner, do not give rise to a right of silence in favour of the undertaking.
77. Second, where the Commission has been able to establish that an undertaking has taken part in meetings between undertakings of a manifestly anti-competitive nature, it is for that undertaking to provide another explanation of the tenor of those meetings. Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence so that the Commission bears the burden of proving that that circumstance was not capable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission (see E.ON Energie
v Commission, paragraph 76 above, paragraphs 75 and 76 and the case-law cited). In respect of questions whose object or effect is to lead an undertaking to supply the Commission with such evidence, that undertaking necessarily enjoys a right of silence. Otherwise, it would be led to admit the existence of an infringement which it is incumbent upon the Commission to prove, as provided for in the case-law cited in paragraph 60 above.
78. Clearly, question 1D does not call for an answer which could be regarded as sufficient to prove the existence of one or more of the putative infringements under investigation by the Commission, in accordance with the case-law cited in paragraph 76 above. Thus, were the Commission to rely on — as against the applicant — the latter’s assessment in its reply to question 1D, it would be open to the applicant, should the case arise, to put forward an alternative interpretation of its answer which differed from that adopted by the Commission.
79. It follows that by compelling the applicant to reply to question 1D, the Commission did not infringe its rights of the defence.
80. Finally, as regards the applicant’s criticism that the Commission required it to provide information that was not in its possession, it should be recalled, first, that the applicant is under an obligation of active cooperation, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation ( Orkem
v Commission, paragraph 56 above, paragraph 27, and Société Générale v Commission, paragraph 28 above, paragraph 72), and, second, for the reasons set out in paragraphs 55 to 57 above, it is open to the Commission to direct questions at the applicant even if this means that the applicant has to marshal the requested information.
81. In any event, it must be made clear that even though, for the reasons set out in paragraph 72 above, Annex II, letter (a), paragraph 4 of the contested decision does not cover the situation where an undertaking does not wish to answer a question put to it, it does apply in relation to information that the applicant is not in a position to have.
82. Accordingly, the Court considers that the applicant is wrong to complain that the contested decision required it to provide information which was not in its possession.
83. The complaints relating to the nature of the information requested must, therefore, be rejected.
Necessity of the information requested
84. As noted in paragraph 28 above, 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 ( SEP v Commission, paragraph 28 above, paragraph 25, and Société Générale v Commission, paragraph 28 above, paragraph 40).
85. 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 (see, to that effect, Case 155/79 AM & S Europe v Commission
[1982] ECR 1575, paragraph 17, and Orkem v Commission, paragraph 56 above, paragraph 15). As regards the Court’s power of review over that assessment by the Commission, it should be noted that, according to the case-law, 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 a correlation must exist 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 ( SEP v Commission, paragraph 28 above, paragraph 29, and Slovak Telekom v Commission, paragraph 22 above, paragraph 42).
86. The applicant relies, in essence, on four complaints. In its third plea in law, the applicant disputes the Commission’s entitlement to request information from it which the Commission could have obtained by itself (first complaint). In the first limb of its fourth plea in law, the applicant disputes the need, in terms of Article 18(1) of Regulation No 1/2003, for the obligation to produce information that has been provided before (second complaint) as well as the use of a different format, applying different criteria and variables (third complaint). The applicant also disputes the necessity of some of the additional information requested by the Commission in the contested decision.
– Claim as to the public nature of some of the information requested
87. In this complaint, the applicant essentially disputes the necessity of questions relating to post codes of the supply sites, the destinations and the place of delivery, or questions entailing the calculation of the distances travelled by the product, from the place of supply to the delivery address, on the ground that the information requested is of a public nature.
88. None the less, it should be noted that such information, although by its very nature accessible to the Commission, is 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.
– Claim that the Commission was in possession of some of the information requested before the contested decision
89. The applicant disputes the Commission’s entitlement to request information from it which had been provided before.
90. The Court observes that recital 6 of the preamble to the contested decision is worded as follows:
‘Against that background, the Commission asks [the applicant], by decision, to provide the information referred to in the questionnaire set out in Annex I to this decision. Annex I takes into account, in so far as necessary, the replies to the letters mentioned in [recital 4 of the preamble to] this decision and the submissions made by the undertakings under investigation throughout the inquiry. Although some of the information has already been requested from [the applicant] under Article 18(2), it has been requested again in Annex I in order to secure a comprehensive, coherent and consolidated answer. Furthermore, Annex I requests additional information which is also necessary to assess the compatibility of the practices under investigation with the competition rules of the European Union, with full knowledge of the facts and their precise economic context.’
91. It follows that the Commission essentially gives two reasons in support of its request for information: first, its intention ‘to secure a comprehensive, coherent and consolidated answer’ and, second, its pursuit of information over and above that provided previously.
92. As regards the first reason put forward by the Commission, it must be stated that the contested decision does appear to have been adopted, at least in part, in order to secure, inter alia, from the applicant a consolidated version of the answers it had provided before.
93. It should be noted that the subject-matter of questions 1A, 1E(i) to 1E(iii), 1F, 2 to 5, 9A, 9B and 10 in Annex I to the contested decision is similar to that of initial questions 8, 31, 39, 10, 18, 17, 28, 40(a) and (b) and 7, respectively.
94. It should also be observed — as the Commission admitted during the hearing — that the first 10 questions of the questionnaire appearing in Annex I to the contested decision are identical to those appearing in the annex to the decisions addressed to the 7 other undertakings affected by the proceedings referred to in paragraph 5 above. It can only be inferred that the Commission did not tailor the questions sent to each undertaking concerned, based on the level of detail and quality of their previous answers.
95. It could therefore be held that the objective of the contested decision was, at least in part, to secure a consolidated version of the information provided previously. That impression is borne out by the overly detailed nature of the questionnaire’s instructions relating to the form in which the answers must be presented. It is thus undeniable that the intention of the Commission was to secure answers in a format which made it easier to compare the information collected from the undertakings concerned.
96. However, in Atlantic Container Line and Others
v Commission, paragraph 57 above (paragraph 425), the Court made it clear that requests for information seeking to secure information on a document already in the Commission’s possession could not be regarded as justified by the needs of the investigation.
97. It should also be noted that in order for a decision requesting information to comply with the principle of proportionality, it is not sufficient for there to be a link between the information requested and the subject-matter of the investigation. It is also important that the obligation to provide information imposed on an undertaking should not be a burden on that undertaking which is disproportionate to the needs of the investigation ( Atlantic Container Line and Others v Commission, paragraph 57 above, paragraph 418, and Slovak Telekom v Commission, paragraph 22 above, paragraph 81).
98. It must be inferred from the foregoing that a decision requiring the addressee to provide — for the second time — information requested previously, on the ground that only some of the information is, in the Commission’s view, incorrect, might prove to be a burden which is disproportionate to the needs of the investigation and would not, therefore, comply with the principle of proportionality or the requirement of necessity. In such a situation, it is indeed open to the Commission to identify precisely the information it considers should be corrected by the undertaking concerned.
99. Likewise, the pursuit of an easier way to process the answers provided by the undertakings cannot justify compelling those undertakings to provide information which is already in the Commission’s possession in a new format. Even though the undertakings are under an obligation of active cooperation, which implies that they must make available to the Commission all information relating to the subject-matter of the investigation ( Orkem v Commission, paragraph 56 above, paragraph 27, and Société Générale v Commission, paragraph 28 above, paragraph 72), that obligation does not extend to the formatting of information already in the Commission’s possession.
100. It is therefore appropriate, in the circumstances of this case, to determine whether the second reason put forward by the Commission — on the need to secure additional information — is well-founded.
101. In the light of the case-law cited in paragraphs 84 and 85 above, it should be held that a Commission decision requesting information which is more detailed than that provided previously must be regarded as justified by the needs of the investigation. The pursuit of all relevant information tending to prove or disprove the existence of an infringement of the competition rules may result in the Commission asking undertakings to clarify or provide details on certain items of factual information previously disclosed to it.
102. In that connection, it should be noted that some of the questions concern information not requested in previous requests for information. That is the case with respect to questions 1B, 1C, 1G, 6A, 6B, 7, 8A to 8C, 9C and 11.
103. Furthermore, as regards questions 1A, 1E(i) to 1E(iii), 1F, 2 to 5, 9A, 9B and 10 in Annex I to the contested decision, the fact is that these entail the provision of information over and above that provided pursuant to previous requests for information, in that they are more specific due to their altered scope or the addition of further variables.
104. It must therefore be concluded that the fact that the purpose of the questionnaire making up Annex I to the contested decision is to secure fresh information or more detailed information is proof that the information requested is necessary.
105. Accordingly, this complaint must be rejected.
– Complaint disputing the necessity of the degree of additional detail requested in the contested decision
106. The applicant considers that, in respect of the questions whose subject-matter is essentially identical to that of the previous requests for information, the degree of additional detail in the questionnaire is not necessary, within the meaning of Article 18(1) of Regulation No 1/2003. In particular, the applicant disputes the necessity of altering the formal presentation of the data, the modification of the calculation criteria and definitions used, and the addition of new variables.
107. As set out in paragraph 101 above, the needs of the investigation may justify the Commission asking undertakings to clarify or provide details on certain items of factual information previously disclosed to it.
108. Furthermore, account must be taken of the highly technical nature of the economic sector covered by the investigation, in so far as it may justify the adoption of an additional questionnaire in order to adjust and clarify the information already in the Commission’s possession.
109. In those circumstances, the Court considers that the changes made in relation to the initial questions must be regarded as necessary for the examination of the putative infringements referred to in the contested decision.
– Complaint disputing the necessity of the additional information requested
110. The applicant considers that the additional information requested by the Commission cannot be regarded as necessary within the meaning of Article 18(1) of Regulation No 1/2003. It specifically refers to questions 1A, 1B and 5, to question 5, point Y, and to question 7, points G and H.
111. First, as regards the necessity of including CEM I in bulk and clinker so far as concerns domestic sales (question 1A) and domestic purchases (question 1B), suffice it to note that these products are varieties of cement and, therefore, information on the price of transactions involving them, by its very nature, has a connection — in accordance with the case-law cited in paragraph 84 above — with the putative infringements set out in the contested decision.
112. Second, as regards question 5, question 5, point Y, and question 7, points G and H, the applicant disputes the usefulness of the information requested. In essence, certain factors, which the Commission overlooked when drawing up the questionnaire, render the data provided unreliable.
113. It should be recalled that the objective of the preliminary investigation stage — of which the contested decision forms part — is 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 as to how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, to that effect, AC-Treuhand v Commission, paragraph 25 above, paragraph 47).
114. Thus, since the purpose of question 5, question 5, point Y, and question 7, points G and H, is to secure information which may legitimately be regarded as having a connection with the putative infringements and which justifies the conduct of the investigation, the criticism relating to the unreliability of the data provided has no bearing on the lawfulness of the request for information. It is the Commission’s responsibility to determine whether the information collected allows it to uphold the existence of one or more of those putative infringements against the applicant, it being open to the applicant — should the case arise — to dispute the probative value of the information requested in its reply to a possible statement of objections or in support of an action for annulment against the final decision.
115. In view of the foregoing, the Court must reject this complaint and, therefore, the third and fourth pleas in law, in so far as they are based on an infringement of Article 18 of Regulation No 1/2003.
Second limb of the fourth plea in law, alleging infringement of the principle of proportionality
116. By the second limb of its fourth plea in law, the applicant disputes the proportionality of, first, having recourse to a decision requesting information under Article 18(3) of Regulation No 1/2003 and, second, the burden entailed by answering the abovementioned questionnaire.
The alleged disproportionality of adopting a decision requesting information under Article 18(3) of Regulation No 1/2003
117. The applicant submits that the adoption of a decision requesting information under Article 18(3) of Regulation No 1/2003 does not comply with the principle of proportionality since, even if it had been necessary to collect details, this could have been done by means of a simple request for information.
118. According to settled case-law, the principle of proportionality, which is among the general principles of EU law, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑189/01 Jippes and Others
[2011] ECR I‑5689, paragraph 81).
119. Pursuant to Article 18(1) of Regulation No 1/2003, the Commission is entitled to request information ‘by simple request or by decision’, without that provision making the adoption of a decision subject to a ‘simple request’ in advance. Accordingly, Article 18 of Regulation No 1/2003 differs from Article 11 of 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), paragraph 5 of which required there to be an earlier failed request for information before information could be requested by decision.
120. In contrast to what the Commission appears to claim in its pleadings, the choice it must make between a simple request for information under Article 18(2) of Regulation No 1/2003 and a decision requesting information under Article 18(3) of the same regulation falls within the assessment of proportionality. That is necessarily apparent from the definition of the principle of proportionality set out in paragraph 118 above, which states that ‘when there is a choice between several appropriate measures, recourse must be had to the least onerous’. Likewise, it can be observed that the choice available to the Commission under Article 18(1) of Regulation No 1/2003 bears a certain similarity to the choice between an investigation by straightforward authorisation and an investigation ordered by a decision under Article 14 of Regulation No 17 and Article 20 of Regulation No 1/2003. The exercise of this choice is subject to review by the Courts of the European Union in accordance with the principle of proportionality (Case 136/79 National Panasonic
v Commission
[1980] ECR 2033, paragraph 29; Case C‑94/00 Roquette Frères
[2002] ECR I‑9011, paragraph 77; and Case T‑340/04 France Télécom v Commission
[2007] ECR II‑573, paragraph 147).
121. In view of the approach favoured by the case-law towards reviewing the proportionality of recourse to an investigation ordered by a decision, it seems that such review, with regard to the choice to be made between a simple request for information and a decision, must depend on the need for an appropriate inquiry, having regard to the special features of the case ( National Panasonic v Commission, paragraph 120 above, paragraph 29; Roquette Frères, paragraph 120 above, paragraph 77; and France Télécom v Commission, paragraph 120 above, paragraph 147).
122. It should be recalled that the contested decision forms part of an inquiry into anti-competitive practices involving, besides the applicant, seven other companies active in the cement sector.
123. A decision differs from a simple request for information in that, pursuant to the former, the Commission may impose a fine or a periodic penalty payment if the undertaking in question supplies incomplete or belated information under, respectively, Article 23(1)(b) and Article 24(1)(d) of Regulation No 1/2003.
124. Therefore, in view of the volume of information to be collected and cross-checked, it is neither inappropriate nor unreasonable of the Commission to proceed by means of the legal instrument offering it the best guarantee that the applicant will provide a complete answer within the prescribed period.
125. It follows from the foregoing that the Commission did not infringe the principle of proportionality by adopting a decision requesting information under Article 18(3) of Regulation No 1/2003 against the applicant.
Alleged disproportionality of the burden entailed by answering the questionnaire
126. The applicant considers that the burden entailed by answering the questionnaire infringes the principle of proportionality. It criticises the fact that the Commission required the provision of quarterly data for the ten-year period 2001-2010 and the particularly costly nature of the obligation to supply some items of information again, in a different format, based on altered calculation criteria and definitions and taking account of new variables. The applicant also considers that the answers to the new questions set out in the questionnaire entail a disproportionate workload.
127. As pointed out in paragraph 97 above, the obligation to provide information imposed on an undertaking should not be a burden on that undertaking which is disproportionate to the needs of the investigation.
128. In the first place, it must be made clear that, for the reasons stated in paragraphs 102 to 104 above, it cannot be held that the Commission infringed the principle of proportionality on the ground that it asked the applicant to provide information which had, in part, already been disclosed to the Commission, since the purpose of the questionnaire making up Annex I to the contested decision is to secure fresh information or information which is more detailed than that provided previously.
129. In the second place, as regards the possible disproportionality of the burden entailed by the format of the questionnaire and by the degree of additional detail of certain questions, the Court observes that it cannot be denied that these elements entail a particularly significant workload.
130. However, it cannot be concluded that this workload is disproportionate having regard to the needs of the inquiry relating to, inter alia, the putative infringements that the Commission intends to investigate and the circumstances of the procedure.
131. In this connection, first, it must be noted that the contested decision forms part of a procedure concerning ‘restrictions on trade flows in the European Economic Area (EEA), including restrictions on imports in the EEA coming from countries outside the EEA, market-sharing, price coordination and related anti-competitive practices in the cement market and related product markets’. Clearly, the broad scope and the seriousness of the putative infringements under investigation by the Commission are able to justify the provision of a large volume of information.
132. Second, account should be taken of the fact — noted in paragraph 122 above — that the contested decision forms part of an inquiry into anti-competitive practices involving, besides the applicant, seven other companies active in the cement sector. Thus, in view of the volume of information to be cross-referenced, it does not seem disproportionate for the Commission to require the answers to be provided in a format that facilitates their comparison.
133. For the same reasons, it does not seem disproportionate for the Commission to request the provision of quarterly data spanning a period of almost 10 years, where it suspects that an infringement has been carried on over a long period. Furthermore, it should be recalled that the European Union judicature has recognised the Commission’s need to request information relating to a period predating the period of the infringement in order to set out the context surrounding the conduct during that period ( Slovak Telekom v Commission, paragraph 22 above, paragraph 51).
134. In the third place and for the same reasons, the Court must reject the argument that the burden entailed by the additional questions appearing in the questionnaire is disproportionate.
135. Finally, in the fourth place, as regards the complaint that the Commission did not allow the alternative proposals for questions submitted by the applicant, it must be noted that although the Commission is required to have recourse to the least onerous measure, in accordance with the principle of proportionality, that obligation only applies when there is a choice between several appropriate measures.
136. The fact of the matter is that the applicant’s proposals amount to an application for a partial exemption from the obligation to answer certain questions, by offering to provide information spanning a shorter period of time than that requested or based on a different calculation method than that favoured by the Commission. In the light of the need for an appropriate inquiry and having regard to, inter alia, the significant number of undertakings affected by the proceedings referred to in paragraph 5 above, the Court holds that the Commission was entitled not to allow the applicant’s proposals.
137. The fourth plea in law must therefore be rejected in its entirety.
Fifth plea in law, alleging infringement of the Commission’s best practices for the submission of economic data and the principle of sound administration
First limb of the plea in law, alleging infringement by the Commission of its best practices for the submission of economic data
138. The applicant submits that, when the Commission adopts a line of conduct, it imposes a limit on the exercise of its own discretion. From this, the applicant infers that since the Commission has had recourse, in the present case, to a preliminary consultation of the undertakings concerned — as recommended in its best practices for the submission of economic data in cases concerning the application of Articles 101 TFEU and 102 TFEU and in merger cases (‘the best practices’) — it was required to comply with those best practices. That did not occur, as the Commission did not take account of either the comments or the requests for clarification submitted by the applicant and the questionnaire that was ultimately adopted differed significantly from the draft, a number of questions set out therein having been omitted from the preliminary consultation.
139. The Commission contends that this line of argument should be rejected.
140. The Court observes that when the Commission lays down an indicative rule of conduct designed to produce external effects, it may not depart from that rule in an individual case without giving reasons that are compatible with the principle of equal treatment (see, to that effect and by analogy, Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission
[2006] ECR I‑4429, paragraph 91).
141. None the less, it must still be possible for the section of the best practices relied on by the applicant to be regarded as a rule of conduct. In this connection, it should be noted that paragraph 3.4.3 of the best practices makes it clear that the Commission will only carry out a consultation if it would be ‘appropriate and useful’. Therefore, in so far as the consultation of the undertakings is presented as a mere discretionary power, the applicant cannot complain that the Commission failed to comply with paragraph 3.4.3 of the best practices by including in its questionnaire questions that were not the subject of a preliminary consultation or, a fortiori, by failing to reproduce all of the observations submitted by the undertakings which were consulted.
142. The first limb of this plea must therefore be rejected.
Second limb of the plea in law, alleging infringement by the Commission of the principle of sound administration
143. The applicant submits that the Commission failed to comply with its duty of diligence by constantly altering the type of questions, the criteria to be applied, the products covered and the countries of reference concerned by its various requests for information. That amounts to an infringement of the principle of sound administration.
144. The Commission denies having infringed the principle of sound administration.
145. It should be noted that recital 37 of Regulation No 1/2003 states that the regulation ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights’ and that it ‘should be interpreted and applied with respect to those rights and principles’. Moreover, since the entry into force of the Treaty of Lisbon, pursuant to the first subparagraph of Article 6(1) TEU, the Charter of Fundamental Rights has the same legal value as the Treaties.
146. Article 41 of the Charter of Fundamental Rights, entitled ‘Right to good administration’, states, in paragraph 1, that ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’.
147. According to the case-law relating to the principle of sound administration, where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14, and Atlantic Container Line and Others
v Commission, paragraph 57 above, paragraph 404).
148. For the reasons set out in paragraphs 102 to 104 above, it must be noted that although the subject-matter of the questionnaire is similar to that of the previous requests for information, it can be distinguished by virtue of the degree of detail of its questions or the existence of new questions. It should also be pointed out that the scope of the investigation carried out by the Commission and the number of undertakings involved, as well as the technical nature of the relevant product market, are able to justify the successive adoption by the Commission of several, partly overlapping, requests for information without infringing the principle of sound administration.
149. In the light of the foregoing, the plea must be rejected and, in consequence, the action must be dismissed in its entirety.
Costs
150. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Buzzi Unicem SpA to pay the costs.