62011TJ0306_EN
Parties
Grounds
Operative part
Parties
In Case T‑306/11,
Schwenk Zement KG,
established in Ulm (Germany), represented by M. Raible, lawyer,
applicant,
v
European Commission,
represented by M. Kellerbauer, R. Sauer and C. Hödlmayr, acting as Agents, assisted by A. Böhlke, lawyer,
defendant,
APPLICATION for annulment of Commission Decision C(2011) 2367 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: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 8 February 2013,
gives the following
Judgment
Grounds
Facts of the dispute
1. In November 2008 and September 2009, 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. Those inspections were followed by the sending of requests for information under Article 18(2) of Regulation No 1/2003. The applicant, Schwenk Zement KG, was not subject to an inspection of its premises nor was it sent a request for information.
2. By letter of 19 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.
3. By letter of 6 December 2010, the applicant submitted its observations on the draft questionnaire.
4. On the same day, 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 undertakings 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’).
5. On 30 March 2011, the Commission adopted Decision C(2011) 2367 final in proceedings pursuant to Article 18(3) of Regulation No 1/2003 (Case 39520 — Cement and related products) (‘the contested decision’).
6. 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 94 pages and 11 sets of questions (recital 6 of the preamble to the contested decision). The instructions concerning the answers to that questionnaire are set out in Annex II to the contested decision, while the answer templates are set out in Annex III.
7. The Commission also drew attention to the description of the alleged infringements, set out in paragraph 4 above (recital 2 of the preamble to the contested decision).
8. 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 twelve weeks to reply to the first ten sets of questions and two weeks to reply to the eleventh set, concerning ‘contacts and meetings’ (recital 8 of the contested decision).
9. 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. All 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.’
10. By letter of 11 April 2011 and e-mail of 12 April 2011, the applicant applied for an extension of the time-limit for replying to the eleventh set of questions until 2 May 2011. By e-mail of 12 April 2011, the applicant was informed that its application would not be granted.
11. On 18 April and 5 May 2011, the applicant sent its reply to the eleventh set of questions. On 27 June 2011, the applicant sent its reply to the first ten sets of questions.
Procedure and forms of order sought by the parties
12. By application lodged at the Registry of the General Court on 10 June 2011, the applicant brought the present action.
13. The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
14. The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
15. Upon hearing the report of the Judge-Rapporteur, the General Court (Seventh Chamber) decided to open the oral procedure.
16. At the hearing held on 8 February 2013, the parties presented their oral arguments and answered the oral questions asked by the Court.
Law
17. In support of its action, the applicant relies on five pleas in law alleging, first, that the adoption of a decision under Article 18(3) of Regulation No 1/2003 is disproportionate, second, that that article was infringed, third, that the time-limit of two weeks for replying to the eleventh set of questions was disproportionate, fourth, that the statement of reasons for the contested decision was inadequate and, fifth, that its defence rights were infringed.
Objection to the statement of reasons for the contested decision, set out in the second and fourth pleas in law
18. In the first limb of its second plea in law, alleging infringement of Article 18(3) of Regulation No 1/2003, the applicant submits, inter alia, that the contested decision lacks detail as regards the putative infringements that the Commission intends to investigate, which prevented it from assessing the necessity of the requested information.
19. In its fourth plea in law, the applicant claims that the statement of reasons for the contested decision is inadequate, in breach of the second paragraph of Article 296 TFEU. In particular, it complains that the Commission paraphrased the wording of Article 101(1) TFEU and Article 18 of Regulation No 1/2003 instead of providing reasons relating to the facts alleged against it, the seriousness of the alleged conduct and the necessity of the requested information. The applicant also contends, in essence, that the obligation to state reasons for the contested decision was even greater in view of, in particular, the unusually short time-limit of two weeks which was fixed for replying to the eleventh set of questions.
20. In its reply to the second plea in law, the Commission argues that the contested decision sets out the putative infringements it intends to investigate in a sufficiently clear manner. In its reply to the fourth plea in law, the Commission submits that the contested decision is sufficiently reasoned.
21. 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).
22. Therefore, the fourth plea in law (inadequate statement of reasons) and the first limb of the second plea in law (infringement of Article 18(3) of Regulation No 1/2003) partly overlap, in that the criticism that the Commission’s description of the putative infringements it intends to investigate lacks detail, which was formally submitted as part of the second plea in law, is tantamount to challenging the statement of reasons for the contested decision in that respect.
23. 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 the judgment of 12 July 2007 in Case T‑266/03 CB v Commission, not published in the ECR, paragraph 35).
24. 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’.
25. This delimitation of the obligation to state reasons is due to the nature of decisions requesting information as measures of inquiry.
26. 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).
27. 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 26 above, paragraph 48 and the case-law cited).
28. 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 26 above, paragraphs 50 and 51).
29. Against that background, it should be recalled that the obligation on the Commission 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).
30. 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 obligation 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’.
31. 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 29 above, paragraphs 62 and 63, and Slovak Telekom v Commission, paragraph 21 above, paragraph 77).
32. 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.
33. 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 24 above.
34. 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.
35. 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’.
36. Furthermore, the contested decision expressly refers to the decision to initiate proceedings mentioned in paragraph 4 above, which contains additional information on the geographic extent of the putative infringements and the type of products covered.
37. 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.
38. It must therefore be inferred that the contested decision is sufficiently reasoned.
39. That conclusion is not affected by the various arguments put forward by the applicant.
40. First, as regards the applicant’s criticism relating to the failure to state reasons justifying the necessity of the requested information, suffice it to note that under Article 18(3) of Regulation No 1/2003, the Commission is not required to state specific reasons in that regard. Indeed, it is by way of the information on the putative infringements which the Commission intends to investigate that the undertaking concerned is able to assess the necessity of the requested information and, if necessary, dispute the decision requesting information before the Court.
41. Second, as regards the complaint that the reasons given for the choice of a two-week time-limit for the eleventh set of questions were inadequate, it should be observed that Article 18(3) of Regulation No 1/2003 only requires the Commission to fix a time-limit and not to provide reasons for its choice thereof.
42. In any event, the contested decision contains reasons in that regard, since recital 8 of its preamble states that the time-limit of twelve weeks for the first ten sets of questions and two weeks for the eleventh set is due to the nature and volume of the information requested and the seriousness of the alleged infringements of the competition rules. Therefore, the Commission can be regarded as having taken the view that the lesser volume of information entailed by the eleventh set of questions justified a shorter time-limit.
43. Third, as regards the applicant’s argument that it was not possible to ascertain from the reasons given for the contested decision the position of the Commission on the observations it had submitted in its letter of 6 December 2010, the answer must be that the Commission was not required to state specific reasons in that regard, either. None the less, it can be observed that recital 6 of the preamble to the contested decision states that those observations were taken into account, where appropriate, when drawing up the questionnaire set out in Annex I to the contested decision.
44. Accordingly, the fourth plea in law and the first limb of the second plea in law must be rejected.
First plea in law, alleging that the adoption of a decision under Article 18(3) of Regulation No 1/2003 was disproportionate
45. The applicant submits that the contested decision infringes the principle of proportionality, since the sending of a simple request for information under Article 18(2) of Regulation No 1/2003 would have been sufficient in the circumstances of the case. In support of its argument, it refers, inter alia, to the fact that unlike other companies targeted by a decision under Article 18(3) of Regulation No 1/2003, the Commission did not send it a request for information beforehand under Article 18(2) of that regulation. The applicant also considers that the changes brought about by Article 18 of Regulation No 1/2003, as opposed to the situation under 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), do not mean that the Commission is free to choose to proceed by way of a request for information or a decision requesting information without observing the principle of proportionality.
46. The Commission contends that this plea should be rejected.
47. 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).
48. 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 Regulation No 17, paragraph 5 of which required there to be an earlier failed request for information before information could be requested by decision.
49. 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 47 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).
50. 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 49 above, paragraph 29; Roquette Frères, paragraph 49 above, paragraph 77; and France Télécom
v Commission, paragraph 49 above, paragraph 147).
51. In this respect, account must be taken of the fact that the contested decision forms part of an inquiry into anti-competitive practices involving, besides the applicant, seven other undertakings active in the cement sector.
52. 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.
53. 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 directly against the applicant by means of the legal instrument offering it the best guarantee that the applicant will provide a complete answer within the prescribed period.
54. Furthermore, since the proportionality of recourse to a decision requesting information must be examined in the light of the need for an appropriate inquiry, the applicant’s claim relating to the unequal treatment it received — inasmuch as the other companies under investigations were subject to a simple request for information before the adoption of a decision under Article 18(3) of Regulation No 1/2003 — must be rejected. The need for an appropriate inquiry is capable of justifying not taking the same approach with respect to all of the undertakings or associations of undertakings which may provide information of relevance to the conduct of that inquiry.
55. 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 and that the first plea in law must be rejected.
The second plea in law, alleging infringement of Article 18 of Regulation No 1/2003
56. In essence, this plea is law is made up of two limbs. The first limb relating to the insufficiently precise nature of the purpose of the request for information has already been dealt with in paragraphs 18 to 44 above. In the second limb, the applicant submits that the information required under the first ten sets of questions has no connection with the facts alleged against it, which amounts to an infringement of Article 18 of Regulation No 1/2003. The existence of an infringement of competition law could not be proven through the disclosure of the information required under the first ten sets of questions, which relate to cement sales over the last ten years and seek to provide the Commission with a detailed picture of the cement industry.
57. The Commission contends that this plea should be rejected.
58. As noted in paragraph 29 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 29 above, paragraph 25, and Société Générale
v Commission, paragraph 29 above, paragraph 40).
59. 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; Case 374/87 Orkem v Commission
[1989] ECR 3283, paragraph 15; and Roquette Frères, point 49 above, paragraph 78).
60. 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 29 above, paragraph 29, and Slovak Telekom v Commission, paragraph 21 above, paragraph 42).
61. In the present case, it must be stated that the applicant does not provide any specific examples of information requested under the first ten sets of questions which it considers not to be necessary. Instead, it is generally critical of the necessity of a request for information covering cement sales over a ten-year period. In essence, the applicant challenges the use of a decision requesting information under Article 18(3) of Regulation No 1/2003, submitting that in those circumstances the Commission should have instead proceeded by means of an investigation into a sector of the economy under Article 17 of Regulation No 1/2003.
62. The applicant’s mere emphasis on the fact that the information requested under the first ten sets of questions covers cement sales over a ten-year period does not, in itself, lead to the conclusion that those questions exceed what could be regarded as necessary in the light of the purpose of the request for information, as referred to in paragraphs 4 and 35 above.
63. That conclusion is not affected by the applicant’s assertion set out in its reply, which essentially alleges that the volume of information requested gives the impression that the contested decision was of an exploratory nature.
64. 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 21 above, paragraph 81).
65. 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.
66. However, the potentially arbitrary nature of the contested decision cannot be proven by reference to the scope of the request for information, the Commission being legitimately entitled to conduct a wide-ranging investigation, provided that it is in possession of reasonable grounds pointing to the involvement of the undertaking in the various putative infringements it intends to investigate.
67. It must be stated that in the present case the applicant does not question, and has not asked the Court to check, that the Commission is in possession of reasonable grounds warranting the adoption of the contested decision. Thus, 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 and based solely on the general claim as to the broad scope of the request for information — whether the Commission had reasonable grounds warranting the adoption of the contested decision.
68. The second plea in law must therefore be rejected.
Third plea in law, alleging that the time-limit of two weeks for replying to the eleventh set of questions was disproportionate
69. The applicant considers that the contested decision infringes the principle of proportionality in view of the insufficient time-limit of two weeks which was fixed for replying to the eleventh set of questions.
70. The Commission contends that this plea should be rejected. It submits that the applicant does not have a legal interest in bringing proceedings so far as concerns the time-limit in question, the reply to the eleventh set of questions having been provided and the applicant having received assurances that it would not be fined should the requested information be provided in successive stages. The Commission also claims that the two-week time-limit was justified and that it was not materially impossible for the applicant to reply to the eleventh set of question by the stipulated time-limit.
71. It is settled case-law that 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 ( SEP v Commission, paragraph 29 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 21 above, paragraph 81).
72. For the purpose of assessing the possible disproportionality of the burden entailed by the requirement to answer the eleventh set of questions within two weeks, account must be taken of the fact that the applicant, as addressee of a decision requesting information under Article 18(3) of Regulation No 1/2003, ran the risk not only of receiving a fine or periodic penalty payment if it supplied incomplete or belated information or if it failed to provide information, pursuant to Article 23(1)(b) and Article 24(1)(d) of Regulation No 1/2003, respectively, but also of receiving a fine if it supplied information which the Commission considered to be incorrect or misleading, pursuant to Article 23(1)(b) of that regulation.
73. Thus, 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 satisfy itself that the information supplied is complete, correct and not misleading.
74. As regards the preliminary issue raised by the Commission regarding the applicant’s legal interest in raising this plea, it must be understood as challenging the applicant’s legal interest in bringing proceedings against the contested decision in so far as that decision imposes a time-limit of two weeks for replying to the eleventh set of questions. The Commission relies on the fact that part of the information requested was provided after the expiry of the time-limit without the applicant being fined and that, in the course of a telephone conversation, the applicant was afforded the possibility of sending its answers in successive stages.
75. Suffice it to note that the legal interest in bringing proceedings against a decision ordering information to be supplied still exists even where that decision has been complied with by its addressee. The annulment per se of such a decision may have legal consequences, in particular by obliging the Commission to take the measures needed to comply with the Court’s judgment and by preventing the Commission from repeating such a practice (see, to that effect and by analogy, Case T‑46/92 Scottish Football v Commission [1994] ECR II‑1039, paragraph 14 and the case-law cited).
76. Therefore, it must be concluded that the applicant has a legal interest in bringing proceedings against the contested decision and is entitled to raise such pleas as it deems appropriate in order to have the Court allow its heads of claim.
77. In any event, it must be stated that the Commission has not put forward any evidence to show that the applicant had been assured that if it provided the information in successive stages (and, therefore, partly after the expiry of the time-limit) it would not be subject to a fine or periodic penalty payment. Although the parties agree that a telephone conversation took place on this point between the applicant’s adviser and a Commission official, they disagree on the precise meaning of that conversation.
78. Thus, the only matter which is clearly apparent from the documents before the Court is the Commission’s refusal, in an e-mail of 12 April 2011, to extend the time-limit applying to the eleventh set of questions, in response to the applicant’s request to that effect set out in its letter of 11 April 2011 and e-mail of 12 April 2011. Consequently, since the applicant sent part of its reply to the eleventh set of questions after the expiry of the stipulated time-limit, it could — at least in theory — be fined by the Commission for that reason under Article 23(1)(b) of Regulation No 1/2003, notwithstanding the assurances that the Commission apparently wishes to give in its pleadings.
79. Furthermore, for the reasons set out in paragraphs 72 and 73 above, it must be held that the possible disproportionality of the burden entailed by the obligation to reply to the eleventh set of questions within two weeks may have an impact on the complete, correct and sufficiently clear nature of the answers provided, which may, depending on the circumstances, also result in the imposition of a fine under Article 23(1)(b) of Regulation No 1/2003.
80. Question 11(a) asks the applicant to disclose all data concerning the role, duties and responsibilities of P. L. and H. M. since 2001, the person to whom they directly report and, lastly, the person or persons to whom they give or gave instructions. Question 11(b) asks the applicant to provide a list of all meetings and other written or oral contacts relating to cement and related products between, of the one part, P. L. (for the period 2003 to 2009) and H. M. (for the period 2006 to 2008) and, of the other part, manufacturers of cement and related products or their representatives in Germany. In this respect, the applicant is asked, inter alia, to specify the dates of the meetings and the names of the attendees and invitees, to state the name of the person and the undertaking that organised the meeting or meetings or that asked for them to be held, and to provide the name, role, duties and responsibilities of the applicant’s other employees who attended those meetings during the period 2001 to 2010. Lastly, question 11(c) asks the applicant to supply all documents relating to the abovementioned contacts or meetings, including — in particular — e-mails, agendas, meeting minutes, travel documents, handwritten notes, reports or memoranda.
81. It must be stated that it is not apparent from the contested decision that there was a specific need of the inquiry which warranted the fixing of a particularly short time-limit for the provision of the information requested under the eleventh set of questions.
82. As indicated in paragraph 42 above, it can only be inferred from recital 8 of the preamble to the contested decision that the reasons for that time-limit might lie in the Commission’s assessment that that set of questions entailed the provision of a lesser volume of information.
83. The Commission rightly points out that, by virtue of a general duty of care attaching to any undertaking or association of undertakings, the applicant is required to ensure the proper maintenance of records in its books or files of information enabling details of its activities to be retrieved, in order, in particular, to make the necessary evidence available in the event of legal or administrative proceedings (Case T‑240/07 Heineken Nederland and Heineken v Commission
[2011] ECR II‑3355, paragraph 301).
84. However, since the reply to the eleventh set of questions entails, inter alia, the identification of all contacts, including the most informal ones, between two of the applicant’s employees and manufacturers of cement and related products or their representatives in Germany, over periods of three and seven years respectively, the Court finds that, notwithstanding this duty of maintenance, the collection, organisation and verification of the requested information was not necessarily straightforward.
85. Furthermore, for the reasons set out in paragraph 73 above, account should be taken of the fact that the stipulated time-limit must enable the applicant to satisfy itself that the information supplied is complete, correct and not misleading.
86. The inevitable inference is that, in view of the nature of the information requested, a time-limit of two weeks is inadequate for such information to be collected and for the applicant to satisfy itself that the reply provided is complete, correct and not misleading.
87. It follows that the imposition of an obligation to reply to those questions within such a time-limit amounts to a disproportionate burden within the meaning of the case-law cited in paragraph 71 above.
88. That conclusion is not affected by the fact, which was pointed out by the Commission, that in its letter of 19 November 2010 it had informed the applicant of its intention to send the latter a decision requesting information under Article 18(3) of Regulation No 1/2003, supplying it with a draft questionnaire in which the fifteenth set of questions was substantially the same as the eleventh set appearing in the final questionnaire.
89. In this connection, suffice it to note that in paragraph 4 of that letter the Commission stated, in completely unambiguous terms, that ‘the Decision taken pursuant to Article 18(3) of Regulation No 1/2003 [would] give Schwenk a time-limit of two months to reply to the decision’s questionnaire in a way which is correct, complete and not misleading’.
90. Thus, the fact that the applicant could legitimately expect to have two months to reply to the eleventh set of questions prevents, in any event, the notification set out in the letter of 19 November 2010 from being taken into account for the purpose of assessing the proportionality of the obligation to reply to that set of questions within a time-limit of two weeks.
91. As for the Commission’s reference to paragraph 38 of its notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), suffice it to note that this reference is irrelevant.
92. In any event, it must be pointed out that according to paragraph 38 of that notice, the stipulated time-limit is generally at least two weeks, although it may be shorter for requests with a limited scope. That tends to give credence to the view that, for the Commission, a time-limit of two weeks is, as a general rule, a minimum requirement. In the present case, in view of the magnitude of the work which the collection, organisation and verification of the requested information is likely to involve, the imposition of a two-week time-limit is disproportionate to say the least.
93. In the light of the foregoing, this plea in law must be upheld.
94. Article 1 of the contested decision states that the annexes form an integral part of the decision. It is apparent from reading Annex I, which comprises the questionnaire, that the eleventh set of questions is not part of an inseparable whole together with the rest of the questionnaire.
95. Accordingly, the contested decision should be annulled only in so far as it requests the applicant to reply to the eleventh set of questions of the questionnaire appearing in Annex I thereto, without there being any need to examine the fifth plea in law, which deals exclusively with the eleventh set of questions.
Costs
96. Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared.
97. In the present case, as the action has been successful in part, the Court will make an equitable assessment of the circumstances of the case and hold that the Commission should bear one third of its own costs and pay one third of the costs incurred by the applicant, and that the applicant should bear two thirds of its own costs and pay two thirds of those incurred by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Annuls Commission Decision C(2011) 2367 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) so far as concerns the eleventh set of questions of the questionnaire comprising Annex I thereto;
2. Orders Schwenk Zement KG to bear two thirds of its costs and pay two thirds of those incurred by the European Commission. Orders the Commission to bear one third of its costs and pay one third of those incurred by Schwenk Zement;
3. Dismisses the action as to the remainder.