Case C‑583/13 P

Deutsche Bahn AG and Others

v

European Commission

‛Appeals — Competition — Rail transport and ancillary services sector — Abuse of dominant position — Regulation (EC) No 1/2003 — Articles 20 and 28(1) — Administrative procedure — Decision ordering an inspection — Commission’s powers of inspection — Fundamental right to the inviolability of the home — No prior judicial authorisation — Effective judicial review — Fortuitous discovery’

Summary — Judgment of the Court (Second Chamber), 18 June 2015

Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Commission having informed its agents of another complaint against the undertaking concerned — No reference to that complaint in the inspection decision — Infringement of the obligation to state reasons and of the rights of the defence

Competition — Administrative procedure — Commission’s power of inspection — No prior judicial authorisation — Whether infringement of the right to effective judicial protection — No — Post-inspection review of the lawfulness of the inspection decision — Scope

Competition — Administrative procedure — Commission’s power of inspection — No prior judicial authorisation — Whether infringement of the right to the inviolability of the home — No — Post-inspection review of the lawfulness of the inspection decision — Fundamental guarantee

The Commission’s investigative powers under Article 20(2) of Regulation No 1/2003 are restricted to the Commission’s agents having the power, inter alia, to enter premises of their choosing, to have access to documents they request and make copies thereof, and to have shown to them the contents of pieces of furniture they indicate. Moreover, under Article 20(6) and (7) of Regulation No 1/2003, authorisation must be sought from a judicial authority where, when the undertaking concerned opposes an inspection, the Member State concerned provides the necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enable the inspection to be conducted and where such authorisation is required under national law. Authorisation may also be applied for as a precautionary measure. Article 20(8) further provides that although the national judicial authority is to control, inter alia, that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject-matter of the inspection, it may not call into question the necessity for the inspection, and that the decision is subject to review only by the Court of Justice. Consequently, the lack of prior judicial authorisation was not capable, in itself, of rendering the inspection measure unlawful. In that regard, the presence of a post-inspection judicial review is capable of offsetting the lack of prior judicial authorisation and is thus capable of constituting a fundamental guarantee in order to ensure the compatibility of the inspection measure in question with Article 8 of the European Convention on Human Rights. That is precisely the case under the system put in place in the European Union, as Article 20(8) of Regulation No 1/2003 states expressly that the lawfulness of the Commission decision is to be subject to review by the Court of Justice. That review means that the European Union courts carry out an in-depth review of the law and of the facts on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. (see paras 23-25, 32-34)

In an inspection decision adopted by the Commission pursuant to Article 20(4) of Regulation No 1/2003, the fundamental right to effective judicial protection, as guaranteed by Article 6(1) of the European Convention on Human Rights, is not disregarded by there being no prior judicial review. The key issue is the intensity of the review covering all matters of fact and law and providing an appropriate remedy if an activity found to be unlawful has taken place and not the point in time when it was carried out. The European Union Courts, ruling on an action for annulment brought against an inspection decision, conduct both a legal and factual review and have the power to evaluate the evidence and annul the contested decision. Moreover, it is open to undertakings that have undergone an inspection to challenge before the EU Courts the lawfulness of the inspection decision and such judicial proceedings can be initiated immediately after the undertaking has been notified of that decision, meaning that there is no need to wait until the Commission has adopted the final decision on the suspected infringement of the EU competition rules in order to bring an action for annulment before the European Union Courts. Lastly, if the inspection decision is annulled or if it is held that there has been an irregularity in the conduct of the investigation, the Commission will be prevented from using, for the purposes of infringement proceedings, any documents or evidence which it might have obtained in the course of that investigation. (see paras 41, 42, 44-46)