JUDGMENT OF THE GENERAL COURT (First Chamber)
30 April 2025 (*)
( Competition – Agreements, decisions and concerted practices – Administrative procedure – Decision ordering an inspection – Article 20(4) of Regulation (EC) No 1/2003 – Subject matter and purpose of the inspection – Obligation to state reasons – Sufficiently serious indicia – Protection of privacy )
Case T‑263/23,
Symrise AG, established in Holzminden (Germany), represented by T. Kuhn, M. Rust, T.‑M. Wienke, L. Bär and G. Forwood, lawyers,
applicant,
v
European Commission, represented by M. Domecq, T. Franchoo and B. Cullen, acting as Agents,
defendant,
THE GENERAL COURT (First Chamber),
composed of R. Mastroianni, acting as President, I. Gâlea and T. Tóth (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the written part of the procedure, in particular;
–        the application lodged at the Registry of the General Court on 16 May 2023,
–        the decision of 6 June 2023 rejecting the applicant’s request for an expedited procedure,
–        the measure of inquiry of 13 March 2024 and the Commission’s response filed at the Court Registry on 15 April 2024,
–        the measure of inquiry of 9 August 2024 and the Commission’s response filed at the Court Registry on 27 August 2024,
further to the hearing of 2 October 2024,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Symrise AG, seeks the annulment of Commission Decision C(2023) 1103 final of 10 February 2023, ordering it and all the companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (Case AT.40826 – Rose)
(‘the contested decision’).
Background to the dispute
2        The applicant is active, inter alia, in the manufacturing and sale of fragrances and fragrance ingredients in the European Economic Area (EEA) as well as worldwide.
3        According to recital 5 of the contested decision, the Commission had information indicating that a number of fragrance manufacturers have entered into agreements or engaged in concerted practices to exchange sensitive business information and coordinate their business behaviour and commercial strategy regarding the supply of consumer fragrances and fragrance ingredients to customers and competitors, at least in the EEA.
4        Under Article 1 of the contested decision, the applicant and the companies which it directly or indirectly controls are required to submit to an inspection regarding potential participation in anticompetitive agreements or concerted practices infringing Article 101 TFEU and Article 53 of the EEA Agreement. Some of that behaviour might have been facilitated by the International Fragrance Association (‘IFRA’). It is specified that that inspection may take place in all premises of the applicant, in particular in those located in Holzminden (Germany).
5        Under Article 2 of the contested decision, the applicant and those companies are to permit the following to enter all their premises, property and means of transport during normal office hours: officials and other accompanying persons authorised by the Commission to conduct the inspection, officials of the competition authority of the relevant Member State and persons authorised or appointed by that authority to assist the aforementioned officials and persons. They are to submit, for inspection by the above, the books and all other record related to the business, permit them to seal any business premises and books or records for the period of the inspection, immediately provide oral information on facts or documents relating to the subject matter and purpose of the inspection and permit the recording of that information in any form.
6        Under Article 3 of the contested decision, the inspection may commence on 7 March 2023 or shortly thereafter.
7        Article 4 of the contested decision provides that that decision is addressed to the applicant, established in Holzminden, and to all of the companies it directly or indirectly controls.
8        On the same date that the contested decision was adopted, the Commission adopted Decision C(2023) 1092 final, the title and operative part of which are identical to those of the contested decision, except, first, that Symrise SAS is specifically identified as being one of the companies directly or indirectly controlled by the applicant and, secondly, that it is specifically stated that the inspection may take place, in particular, in its premises in Clichy (France).
9        The inspection took place in Holzminden from 7 to 9 March 2023. At the site in Clichy, the inspection started at 16.00 on 8 March 2023 and ended on the same day at around 20.00.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
11      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The subject matter of the action and admissibility
12      In the reply, the applicant refers, in support of its arguments, both to Decision C(2023) 1103 final and Decision C(2023) 1092 final.
13      However, it should be borne in mind that, under Article 76, in conjunction with Article 84, of the Rules of Procedure of the General Court, the subject matter of the claim must be defined in the application. A claim put forward for the first time in the reply modifies the original subject matter of the application and must therefore be regarded as a new claim and be rejected as inadmissible (see judgment of 16 December 2020, Balti Gaas v Commission and INEA, T‑236/17 and T‑596/17, not published, EU:T:2020:612, paragraph 71 and the case-law cited).
14      In that regard, it must be found that the subject matter of present action is the annulment of Commission Decision C(2023) 1103 final (see paragraph 1 above).
15      Accordingly, as the Commission contends, the applicant’s claim, put forward for the first time at the stage of the reply, seeking, in essence, to extend the forms of order it sought to cover Commission Decision C(2023)
1092 final must be rejected as inadmissible.
Substance
16      The applicant puts forward, in essence, two pleas in law, alleging, first, infringement of the right of inviolability of private premises and privacy and, secondly, infringement of Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2022 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2008 L 1, p. 1) and of the obligation to state reasons.
17      The Court considers it appropriate to begin by examining the second plea.
The second plea in law, alleging infringement of Article 20(4) of Regulation No 1/2003 and of the obligation to state reasons
18      According to the applicant, the Commission has not fulfilled its obligation to state reasons laid down in Article 296(2) TFEU and, accordingly, had infringed its rights of defence.
Preliminary observations
19      It should be recalled that the statement of reasons required under Article 296 TFEU for measures of institutions of the European Union must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by its author in such a way as to enable the person concerned to ascertain the reasons for it and to enable the competent court to exercise its jurisdiction to review its legality (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 31 and the case-law cited).
20      The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which its addressee may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the statement of reasons for a measure must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 32 and the case-law cited).
21      It is necessary to take into account the legal context in which inspections by the Commission take place. Article 4 and Article 20(1) of Regulation No 1/2003 confer inspection powers on the Commission which are designed to enable it to perform its task of protecting the internal market from distortions of competition and to penalise any infringements of the competition rules on that market (see, to that effect, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 33 and the case-law cited).
22      Thus, so far as concerns, specifically, the Commission’s inspection decisions, it is apparent from Article 20(4) of Regulation No 1/2003 that those inspection decisions must indicate, inter alia, the subject matter and purpose of the inspection. That obligation to state specific reasons constitutes, as the Court of Justice has made clear, a fundamental requirement not only to show that the intervention envisaged within the undertakings concerned was proportional, but also to put those undertakings in a position to understand the scope of their duty to cooperate, while preserving their rights of defence (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 34 and the case-law cited).
23      In that regard, it must be borne in mind that, the Commission is not required to communicate to the addressee of an inspection decision all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, providing it clearly indicates the presumed facts which it intends to investigate (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 35 and the case-law cited).
24      Although, admittedly, the Commission is obliged to indicate as precisely as possible the evidence sought and the matters to which the investigation must relate, it is, on the other hand, not essential in a decision ordering an inspection to define precisely the relevant market, to set out the exact legal nature of the presumed infringements or to indicate the period during which those infringements were committed, provided that that inspection decision contains the essential elements set out above (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 36 and the case-law cited).
25      Having regard to the fact that inspections take place at the beginning of an investigation, the Commission generally still lacks precise information to make a specific legal assessment and must first verify the accuracy of its suspicions and the scope of the incidents which have taken place, the aim of the inspection being specifically to gather evidence relating to a suspected infringement (see, to that effect, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 37 and the case-law cited).
26      The second plea in law, alleging infringement of Article 20(4) of Regulation No 1/2003 and of the obligation to state reasons, is divided into two parts, alleging, first, a lack of precision as to the subject matter and purpose of the inspection in the contested decision and, secondly, the absence of clear and unequivocal reasoning.
The first part, alleging a lack of precision as to the subject matter and purpose of the inspection
27      The applicant claims, first, that the Commission did not specify the subject matter and purpose of the inspection, thus infringing Article 20(4) of Regulation No 1/2003. In accordance with case-law, it argues, the Commission must state the essential features of the suspected infringement. Secondly, whereas it is stated in recital 9 of the contested decision that ‘the [behaviour] appears to have endured since 2016’, the earliest of the dates referred to in the documents submitted by the Commission is ‘the second half of 2018’. In the applicant’s view, the Commission had no basis to subject it to an inspection with access to data dating back to 2016.
28      The Commission disputes the applicant’s arguments.
29      In the first place, as the applicant indicates, it is apparent from the case-law that the Commission must state, as precisely as possible, the presumed facts that it wishes to investigate, namely, what it is looking for and the matters to which the inspection must relate. To that end, the Commission is also required to state, in a decision ordering an inspection, the essential features of the suspected infringement by indicating the market thought to be affected, the nature of the suspected restrictions of competition and the supposed degree of involvement in the infringement of the undertaking concerned, as well as the powers conferred on the European Union investigators (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 39 and the case-law cited).
30      In the present case, as regards, first, the market at issue, it is clearly apparent from Article 1 of the contested decision that it is the market for ‘the supply of consumer fragrances and fragrance ingredients to customers and competitors’.
31      As regards, secondly, the nature of the suspected restrictions of competition, Article 1 of the contested decision states that ‘among the alleged agreements [or] concerted practices are, inter alia, the exchange of sensitive business information, the coordination of commercial [behaviour] and commercial strategies, directly [or] through IFRA, regarding the supply of consumer fragrances and fragrance ingredients to customers and competitors as well as the potential coordination, together with or with the support of IFRA, of the setting of IFRA standards with the intention to exclude other suppliers of fragrance [or] fragrance ingredients from the market’.
32      In addition, recitals 5 to 8 of the contested decision provide even greater precision by stating that ‘a number of fragrance manufacturers have entered into agreements [or] engaged in concerted practices to exchange sensitive business information and to coordinate their business [behaviour] and commercial strategy regarding the supply of consumer fragrances and fragrance ingredients to customers and competitors, at least within the EEA’, that, ‘as part of this, [those] fragrance manufacturers may potentially have coordinated their pricing mechanism and pricing strategy as well as other commercial conditions’, that ‘the fragrance manufacturers may [also have] allocated the relevant market and coordinated their strategic [behaviour] regarding tenders’, that, ‘based on information available to the Commission, the aforementioned coordination has in part taken place during or at the occasion of IFRA meetings’, and that, ‘further, a number of fragrance manufacturers, together with IFRA or with the support of IFRA, may have coordinated the setting of IFRA standards with the intention to exclude other fragrance suppliers [or] suppliers of fragrance ingredients’.
33      As regards, thirdly, the supposed degree of involvement in the suspected infringement of the undertaking concerned, that matter is, admittedly, not expressly specified in the contested decision.
34      However, in recital 1 of the contested decision, it is stated that the applicant ‘is, inter alia, active in the manufacturing and sale of fragrance and fragrance ingredients in the EEA as well as worldwide’. As has been noted in paragraph 32 above, ‘a number of fragrance manufacturers’ are suspected.
35      Additionally, recital 2 of the contested decision specifies that IFRA currently ‘consists of seven [regular] members [which] are multinational fragrance companies[,] 23 national associations representing companies active in the fragrance sector, as well as 10 supporting members that are fragrance manufacturers in countries without a local association’. It is apparent from IFRA’s website that the applicant is one of those seven regular members, a fact which the applicant does not dispute.
36      The applicant was therefore in a position to understand the reasons for which it is suspected of involvement in the suspected infringement.
37      As regards, fourthly, the powers conferred on the investigators, they are indicated with great precision in Article 2 of the contested decision. In the words of that article, those powers include
having the applicant and its directly and indirectly controlled subsidiaries
permit the inspection of ‘all [their] premises, property and means of transport during normal office hours’, submit for inspection
‘the books or other records related to the business, in whatever form they may be in’, permit the investigators ‘to make or obtain copies or extracts thereof’, permit them to ‘seal business premises and books or records of any kind for such time and to such extent as may be necessary for the purpose of the inspection’, ‘immediately provide oral information on facts or documents relating to the subject matter and purpose of the inspection’ and ‘permit the recording of the information provided in any form’.
38      It must therefore be found that the requirement to state the essential features of the suspected infringement, as established by the case-law, has been met in the present case.
39      It may also be found that the relevant markets were defined geographically in recital 5 of the contested decision (the suspected infringement consisted in the exchange of sensitive information and the coordination of behaviour ‘at least within the EEA’) and the suspected infringement was delimited in time in recital 9 of that decision (the suspected behaviour taking place ‘[at least] since 2016’).
40      It follows from the foregoing that the Commission, in the contested decision, indicated enough features to enable the applicant to acquaint itself with the subject matter and purpose of the inspection to which it was subject.
41      In the second place, as regards the applicant’s argument that the Commission was not able to subject it to an inspection with access to data dating back to 2016 since the earliest date referred to in the documents submitted by the Commission is ‘the second half of 2018’, it is sufficient to recall that, according to the case-law, the Commission is not required to indicate the period within which the suspected infringements were allegedly committed (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 38 and the case-law cited).
42      The first part of the second plea in law must therefore be rejected.
The second part, alleging the absence of clear and unequivocal reasoning.
43      The applicant claims that the Commission fails to state, in the contested decision, its reasoning in a clear and unequivocal fashion. In particular, it argues, the operative part of the contested decision fails to identify clearly the suspected infringement and is therefore vitiated by a manifest failure to state reasons. Not only, in its view, does the operative part of the contested decision differ, in some respects, from the recitals thereof, but Article 1 is drafted in a very vague and imprecise way on account of the use, in particular, of the term ‘inter alia’ in relation to the alleged agreements or concerted practices.
44      The Commission disputes the applicant’s arguments.
45      In the present case, it should be noted that the terms of Article 1(1) of the contested decision (see paragraphs 30 and 31 above) merely restates, in a more concise manner, the information in recitals 5 to 8 of that decision (see paragraph 32 above).
46      Furthermore, while Article 1 of the contested decision contains the words ‘inter alia’, those words cannot be regarded, in the light of the case-law cited in paragraph 24 above, as a contrivance used by the Commission to, as the applicant claims, ‘make sure that any possible finding
during the inspection would fit within the scope of [that decision]’. It has thus already been held that the use of the expression ‘inter alia’ in an inspection decision did not infringe the obligation to state reasons, since the Commission does not yet have precise information to issue a specific legal opinion, but must first of all verify the substance of its suspicions and also the extent of the facts that have taken place (see, to that effect, judgment of 10 December 2014, ONP and Others v Commission, T‑90/11, EU:T:2014:1049, paragraph 231).
47      In that regard, the applicant refers to paragraph 54 of the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), in which the Court found that the expression ‘amongst others’ was ‘ambiguous’. It should be noted, first, that the Court did not, on that point, find a lack of clarity due to the expression ‘amongst others’ and, secondly, that the expression ‘amongst others’ referred to products concerning which the applicants could be requested to submit documents by the Commission, and not a list of behaviours that may constitute an infringement. The reference, by the applicant, to paragraph 54 of that judgment is accordingly irrelevant.
48      It is therefore necessary to reject the applicant’s argument that Article 1 of the contested decision differs from the operative part thereof and is drafted in a very vague and imprecise way.
49      The second part of the second plea in law must accordingly be rejected.
50      In the light of all of the foregoing, the second plea in law must be rejected as unfounded.
The first plea in law, alleging infringement of the right of inviolability of private premises and privacy
51      The applicant claims that the contested decision is arbitrary and infringes its fundamental right to the inviolability of its private premises. The contested decision is also, in its view, disproportionate in so far as it is unlimited in time.
52      In the application, the first plea is divided into two parts, alleging, in essence, first, that the contested decision was arbitrary and, secondly, that there was disproportionate interference with the right to privacy.
53      In its observations of 12 December 2024 on the documents produced by the Commission on 27 August 2024, the applicant seeks to introduce a third part, alleging that conducting an inspection instead of sending a request for information was a disproportionate interference with the applicant’s right to privacy.
The first part, alleging that the contested decision was arbitrary
54      The applicant claims, in essence, that the Commission did not have sufficiently serious evidence to suspect its involvement in any competition law infringement and accordingly justify an inspection of its premises. The way the inspection in its premises was conducted, it argues, suggests a ‘fishing expedition’.
55      In addition, during the hearing, the applicant submitted that the documents which were communicated to it by the Commission, pursuant to the measure of inquiry of 9 August 2024, are not sufficient to support the finding that that it might have participated in an agreement with the three largest fragrance manufacturers, in particular within IFRA.
56      The Commission disputes the applicant’s arguments.
57      It must be observed that the applicant’s arguments concern, first, the question of whether indicia that were sufficiently serious to justify an inspection existed prior to the adoption of the contested decision, and secondly, how that inspection was conducted.
58      In the first place, as regards the existence of sufficiently serious indicia prior to the adoption of the contested decision, according to settled case-law, an inspection decision 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 sufficiently serious indicia for suspecting an infringement of the competition rules (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 35 and the case-law cited).
59      In other words, having reasonable grounds for suspecting infringement of the competition rules is a prerequisite for the Commission to order an inspection pursuant to Article 20(4) of Council Regulation No 1/2003 (judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 36).
60      It must also be borne in mind that the various indicia which make suspecting an infringement possible must not be assessed separately but as a whole, and can be mutually supportive (see judgments of 27 November 2014, Alstom Grid v Commission, T‑521/09, EU:T:2014:1000, paragraph 54 and the case-law cited, and of 29 February 2016, EGL and Others v Commission, T‑251/12, not published, EU:T:2016:114, paragraph 150 and the case-law cited).
61      When the Courts of the European Union are called upon, as in the present case, to review an inspection decision in order to ensure that it is in no way arbitrary, they must satisfy themselves that there are sufficiently serious indicia for suspecting an infringement of the competition rules by the undertaking concerned (see, to that effect, judgments of 14 November 2012, Nexans France and Nexans v Commission, T‑135/09, EU:T:2012:596, and of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 48).
62      It is therefore necessary to determine the indicia in the Commission’s possession on the basis of which it ordered the inspection at issue, assess whether those indicia were sufficiently serious for it to suspect that the infringements at issue had been committed and ascertain whether those indicia make it possible to suspect that the company concerned was involved.
63      In that regard, the Commission, pursuant to the measures of inquiry of 13 March and of 9 August 2024, produced several annexes, from which information which it regarded as confidential was redacted.
64      They include, inter alia, first, as regards Annexes 7 to 12, replies of third parties to various requests for information issued by the Commission in accordance with Article 18 of Regulation No 1/2003 which had been received between August 2002 and the date of adoption of the contested decision. Secondly, as regards Annex 14, they include an open source intelligence report of the Commission, drawn up on 29 September 2022.
65      According to the replies referred to in Annexes 7, 8 and 11, fragrance manufacturers are dependent on their supplier due to the very limited substitutability of the products.
Those manufacturers are not aware of how the fragrance they use is composed, which makes it practically impossible for them to change suppliers, since the latter would not hesitate to threaten retaliation.
66      According to the responses provided in Annex 7, the level of interdependence and solidarity between the four largest manufacturers, which include the applicant, is particularly high because about 30% of raw ingredients are produced by one of those four manufacturers, with the result that each of the four is interdependent with the others to the point of there being a risk of price discrimination as regards the cross-supplied ingredients.
67      In addition, according to Annex 7, the other manufacturers are dependent on those four large manufacturers for sourcing raw ingredients. In such a market environment, if a company significantly lowers prices in an attempt to capture its competitors’ sales, the latter may threaten not to sell it ingredients.
68      The responses provided in Annexes 7 and 8 also indicate that, within IFRA, the four largest manufacturers, including the applicant, occupy a privileged position within that association, coordinate their votes in a concerted manner and successfully impose their views within that organisation. That privileged position within IFRA allows those manufacturers to exchange their views within that framework on the attitude of some of their customers and to adopt coordinated positions, impose their standards to the detriment of smaller manufacturers and to use IFRA to support their positions before regulatory authorities such as the European Chemicals Agency (ECHA).
69      Furthermore, according to the responses in Annexes 7 to 9, first, the four largest fragrance manufacturers adopt similar behaviour, in particular concerning pricing and contractual practices.
70      Secondly, those manufacturers exchange sensitive information, such as information concerning contract cycles, including those of the applicant, which ought to be confidential. During a call for tenders in which the applicant participated, the three other largest manufacturers adopted coordinated positions. In that regard, the responses indicate that, as regards the applicant, it aligned its behaviour with that of the three largest manufacturers before distancing itself from it (Annex 8).
71      In addition, the Commission produced an open source intelligence report (Annex 14) according to which the four largest fragrance manufacturers, including the applicant, colluded with IFRA to impose, inter alia, by adopting a Code of Practice, barriers to entry in the market for natural ingredients and fragrances to the benefit of synthetic ingredients, produced by a limited number of companies. That analysis also indicates the possible existence of a cartel among those four manufacturers.
72      That evidence is therefore capable of demonstrating that, prior to the contested decision, the Commission possessed sufficiently specific and clear indicia for it to suspect that the four largest fragrance manufacturers, which include the applicant, aligned, imposed and defended their industrial policy to the detriment of their other competitors through IFRA, shared, during or at the occasion of IFRA meetings, sensitive business information concerning those competitors, aligned their business behaviour in respect of their customers and, lastly, were able to coordinate their strategic behaviour regarding tenders.
73      Such a finding cannot be called into question by the applicant’s arguments that those documents cannot constitute serious material indicia that may lead the Commission to suspect the existence of an infringement.
74      In that regard, the applicant claims that the responses, at least in Annexes 7 and 8, which refer to it by name, come from a single company.
75      However, even if that were the case, it must be noted that the information contained in those annexes may be supported by other evidence relied on by the Commission and may therefore, in accordance with the case-law referred to in paragraph 60 above, constitute indicia on which the Commission was able to rely to order an inspection concerning the applicant.
76      Consequently, the responses in Annexes 7 and 8, according to which the four largest manufacturers, including the applicant, occupy a privileged position within IFRA, coordinate their votes in a concerted manner and successfully impose their views within that association (see paragraph 68 above) are supported by the summary document, drawn up on the basis of open source intelligence, in Annex 14 (see paragraph 71 above).
77      Similarly, while, as the applicant claims, Annex 14 does not identify the actual sources of information on which the Commission relies, in any event, that information is supported by the testimony in Annex 7.
78      In that regard, as the Commission observes, first, disclosing such sources of information may reveal its working methods, which it is entitled not to want to divulge in an area as sensitive as competition law, and, secondly, access to such sources might have made it possible to uncover the identity of the persons criticising the practices of the large fragrance manufacturers and given rise to potential retaliatory action against those persons.
79      The applicant also notes that, as regards Annexes 8 and 11, while it is stated in the response relating, in particular, to the question of consumers’ dependence on fragrance manufacturers that the ‘big three’ possess a credible retaliation mechanism, the applicant is not referred to as being one of those three.
80      In that regard, first, the applicant is named, in Annex 7, as one of the four largest manufacturers and it does not deny being the fourth largest fragrance manufacturer with a 12% share of the market under consideration. Secondly, that annex specifies that the four largest manufacturers, including the applicant, make up more than two-thirds of the global market, the other third being shared between various small companies. It may therefore be found that the applicant is, in any event, indeed one of the manufacturers on which consumers depend.
81      In addition, as regards Annex 9, the applicant highlights that that annex refers only to the three other fragrance manufacturers.
82      Even though that annex, from which appears that the four largest fragrance manufacturers adopt similar behaviour, in particular concerning pricing and contractual practices (see paragraph 69 above), does not refer specifically to the applicant, it must be observed that Annex 8 implicates it directly, in circumstances where it is indicated, first, that one of the competitors had knowledge of confidential information relating to ‘contract cycles’ concerning it and, secondly, that, in the context of a call for tenders, the applicant made contractual offers which were disturbingly similar to those of its competitors.
83      On the basis of that information, the Commission could reasonably suspect
the existence of possible concerted action by the applicant with its competitors.
84      Furthermore, contrary to what the applicant claims, the fact that, at the start of Annex 8, only three manufacturers are named in the call for tenders and that, later in that annex, reference is made to the applicant does not appear to be such as to constitute an error on the part of the witness, since it cannot be ruled out that the applicant might have joined the three other fragrance manufacturers during the tendering procedure.
85      Lastly, it is necessary to note that, as the Commission explained, the competition authorities of the United-States, the United Kingdom and Switzerland launched concurrent inspections or other investigative measures into identical alleged anticompetitive conduct. The applicant specifies, however, that, as regards the United Kingdom, on 7 March 2023 – the day on which the inspection at issue in the present case began (see paragraph 9 above) – the UK’s Competition and Markets Authority issued a request to produce documents to the applicant’s subsidiary in the UK and, on the same day, its premises were visited. The applicant also states that the Swiss Competition Commission opened an investigation concerning it under Article 27 of the Kartellgesetz (Cartel Act). According to that provision, an investigation is to be opened ‘if there are indications of an unlawful restraint of competition’.
86      By these statements, the applicant confirms the existence of a context of suspicion of a cartel on an international scale.
87      In the second place, as regards how the inspection was conducted in the applicant’s premises, the applicant claims that it was particularly superficial since the Commission’s agents mainly restricted themselves to downloading IT data without, for example, searching for information on all the laptops or phones of the employees present or going through their hardcopy files.
88      However, it must be noted that such arguments are irrelevant since they do not concern, as such, the way in which the inspection was conducted, but the question whether the evidence possessed by the Commission is sufficient for it to suspect the anticompetitive practices referred to in the contested decision.
89      It follows from all of the foregoing that the first part of the first plea in law must be rejected.
The second part, alleging that there was disproportionate interference with the right to privacy
90      The applicant submits, first, that, while Article 3 of the contested decision provides that ‘the inspection commences on 7th March 2023 of shortly thereafter’, the applicant remains exposed to the possibility of the Commission inspecting its premises again in the future, at any point in time, possibly repeatedly, since that decision does not indicate when the inspection ends.
91      Secondly, the fact that the contested decision allowed the inspection to continue for three and a half months after the on-site inspection constitutes disproportionate interference with the right to privacy. Such a disproportionate period, it argues, cannot be regarded as a reasonable length of time in accordance with Article 41(1) of the Charter of Fundamental Rights of the European Union and the case-law of the Court.
92      The Commission disputes the applicant’s arguments.
93      Under Article 20(4) of Regulation No 1/2003, an inspection decision must specify the date on which it is to begin.
94      The absence of any specific date by which the inspection has to be completed does not mean that the inspection can go on indefinitely, since the Commission is, in that regard, required to observe a reasonable time limit in accordance with Article 41(1) of the Charter of Fundamental Rights (see, to that effect, judgment of 12 July 2018, Nexans France and Nexans v Commission, T‑449/14, EU:T:2018:456, paragraph 69).
95      According to recital 24 of Regulation No 1/2003, the Commission should be empowered to undertake such inspections ‘as are necessary’ to detect an agreement, decision or concerted practice prohibited by Article 101 TFEU. Therefore, according to the case-law, it is for the Commission to assess whether an inspection measure is necessary to detect an infringement of the competition rules (see, to that effect, judgment of 18 May 1982, AM & S Europe v Commission, 155/79, EU:C:1982:157, paragraph 17; see also, by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission, T‑296/11, EU:T:2014:121, paragraph 66 and the case-law cited).
96      The fact remains that that assessment is subject to review by the EU judicature and, in particular, to compliance with the rules governing the principle of proportionality. According to settled case-law, the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order for the desired objective to be attained. However, 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 (see judgment of 8 March 2007, France Télécom v Commission, T‑339/04, EU:T:2007:80, paragraph 117, and of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 22).
97      First of all, it is appropriate to reject the applicant’s argument that, since the date by which the inspection had to be completed was not specified, the applicant is exposed to ‘the possibility of the Commission inspecting its premises again in the future, at any point in time, possibly repeatedly’, because the applicant itself refers to receiving confirmation of the end of the inspection from the Commission just under four months after it began.
98      In addition, it is necessary to examine whether the period of the inspection at issue exceeded the limits necessary for it to be conducted properly.
99      It follows from the Commission’s explanations that, in accordance with the terms of the contested decision, the inspection, concerning Holzminden, commenced on 7 March 2023 and ended on 9 March 2023, since it was not until that date that the applicant communicated the data requested by the Commission.
100    Once those data were communicated, the Commission removed them to its own premises in order to analyse them and not to prolong the on-site inspection. The Commission then indexed the applicant’s data in its premises on 3 and 4 May 2023, and at the premises of the applicant’s lawyer, in the presence of that lawyer, between 21 and 23 June 2023, the date on which the inspection was definitively concluded.
101    It must accordingly be held that, first, the on-site inspection lasted for only three days and, secondly, the applicant has failed to establish how reviewing the data in the Commission’s premises and then at those of the applicant’s lawyer constitutes a disproportionate interference with the right to privacy.
102    The second part of the first plea in law must therefore be rejected.
The third part, alleging disproportionate interference with the applicant’s right to privacy as a result of an inspection being conducted instead of a request for information being sent
103    In its observations of 12 September 2024, the applicant claims that it is apparent from the documents produced that the Commission could have investigated any alleged agreement by sending it a request for information. In that context, it argues, conducting an inspection was a disproportionate interference in its fundamental rights of inviolability of its private premises and of privacy.
104    In that regard, it must be noted that, while Article 84(2) of the Rules of Procedure allows for new pleas to be introduced after the second exchange of pleadings where matters of law or fact justify it, the applicant has not explained how it is apparent from the documents produced by the Commission that the latter could have simply, instead of conducting an on-site inspection, asked it to reply to a request for information.
105    That third part must therefore be rejected as inadmissible, since it is out of time.
106    In any event, it must be observed that the applicant does not put forward any argument capable of calling into question the statement in recital 13 of the contested decision that ‘in order to ensure the effectiveness of the inspection, it is essential that it be carried out without prior warning to the undertakings or association of undertakings alleged to be involved in the infringements and in several places at the same time’.
107    It follows from the foregoing that the first plea in law must be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
108    Under Article 134(1) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Symrise AG to pay the costs.
Mastroianni
Gâlea
Tóth
Delivered in open court in Luxembourg on 30 April 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.