Keywords

Summary



Keywords

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1.Measures adopted by the institutions - Statement of reasons - Obligation - Scope - Decision ordering an investigation under Article 14(3 ) of Regulation No 17

( Regulation No 17 of the Council, Art . 14(3 ) )

2.Competition - Administrative procedure - Commission' s powers of investigation - Use of information obtained during an investigation - Limits - Initiating of an inquiry into conduct contrary to the competition rules in the Treaty in another sector revealed by chance in the course of an investigation - Whether acceptable

( Regulation No 17 of the Council, Arts 14(3 ) and 20(1 ) )

3.Community law - Principles - Rights of the defence - Observance thereof in the context of administrative proceedings

( Regulation No 17 of the Council, Art . 14 )

4.Community law - Principles - Fundamental rights - Right of natural persons to the inviolability of their homes - Not applicable to undertakings - Protection against arbitrary or disproportionate intervention by the public authorities

( Regulation No 17 of the Council, Art . 14 )

5.Competition - Administrative procedure - Commission' s powers of investigation - Scope - Access to undertakings' premises - Limits - Specification of the subject-matter and purpose of the investigation

( Regulation No 17 of the Council, Art . 14 )

6.Competition - Administrative procedure - Commission' s powers of investigation - Limits - Situations requiring the assistance of the national authorities

( Regulation No 17 of the Council, Art . 14 )

7.Competition - Administrative procedure - Commission' s powers of investigation - Assistance of the national authorities - Procedural rules laid down by national law - Review by national courts - Limits

( Regulation No 17 of the Council, Art . 14(6 ) )

8.Measures adopted by the institutions - Decision - Validity - Assessment to take no account of any irregularities in its implementation

Summary

1.Article 14(3 ) of Regulation No 17 itself lays down the essential constituents of the statement of the reasons upon which a decision is based . The Commission' s obligation to specify the subject-matter and purpose of the investigation constitutes a fundamental guarantee of the rights of the defence of the undertakings concerned . It follows that the scope of the obligation to state the reasons on which decisions ordering investigations are based cannot be restricted on the basis of considerations concerning the effectiveness of the investigation . Although the Commission is not required to communicate to the addressee of a decision ordering an investigation all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, it must none the less clearly indicate the presumed facts which it intends to investigate .

2.It follows from Articles 20(1 ) and 14(3 ) of Regulation No 17 that information obtained during investigations must not be used for purposes other than those indicated in the order or decision under which the investigation is carried out . In addition to professional secrecy, expressly mentioned in Article 20, that requirement is intended to protect the rights of the defence of undertakings, guaranteed by Article 14(3 ).

On the other hand, it cannot be concluded that the Commission is barred from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty . Such a bar would go beyond what is necessary to protect professional secrecy and the rights of the defence and would thus constitute an unjustified hindrance to the performance by the Commission of its task of ensuring compliance with the competition rules in the common market and to bring to light infringements of Articles 85 and 86 of the Treaty .

3.Respect for the rights of the defence constitutes a fundamental principle and must therefore be ensured not only in administrative procedures which may lead to the imposition of penalties but also during preliminary inquiry procedures such as investigations under Article 14 of Regulation No 17, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable .

4.Although the existence of a fundamental right to the inviolability of the home must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities . No other inference is to be drawn from Article 8 of the European Convention on Human Rights .

None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law .

5.Both the purpose of Regulation No 17 and the list of powers conferred on the Commission' s officials by Article 14 thereof show that the scope of investigations may be very wide .

In that regard, the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings .

That right of access would serve no useful purpose if the Commission' s officials could do no more than ask for documents or files which they could identify precisely in advance . On the contrary, such a right implies the power to search for various items of information which are not already known or fully identified . Without such a power, it would be impossible for the Commission to obtain the information necessary to carry out the investigation if the undertakings concerned refused to cooperate or adopted an obstructive attitude .

However, the exercise of the wide powers of investigation conferred on the Commission is subject to conditions serving to ensure respect for the rights of undertakings . In that regard, the Commission' s obligation to specify the subject-matter and purpose of the investigation is a fundamental requirement not merely in order to show that the investigation to be carried out on the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate while at the same time safeguarding the rights of the defence .

6.Where investigations are carried out with the cooperation of the undertakings concerned by virtue of an obligation arising under a decision ordering an investigation, the Commission' s officials have, inter alia, the power to have shown to them the documents they request, to enter such premises as they choose, and to have shown to them the contents of any piece of furniture which they indicate . On the other hand, they may not obtain access to premises or furniture by force or oblige the staff of the undertaking to give them such access, or carry out searches without the permission of the management of the undertaking, which may, however, be implied, in particular by the provision of assistance to the Commission' s officials .

On the other hand, if the undertakings concerned oppose the Commission' s investigation, its officials may, on the basis of Article 14(6 ) of Regulation No 17 and without the cooperation of the undertakings, search for any information necessary for the investigation with the assistance of the national authorities, which are required to afford them the assistance necessary for the performance of their duties . Although such assistance is required only if the undertaking expresses its opposition, it may also be requested as a precautionary measure, in order to overcome any opposition on the part of the undertaking .

7.It follows from Article 14(6 ) of Regulation No 17 that it is for each Member State to determine the conditions under which the national authorities will afford assistance to the Commission' s officials . In that regard, the Member States are required to ensure that the Commission' s action is effective, while respecting the general principles of Community law . Within those limits, the appropriate procedural rules designed to ensure respect for undertakings' rights are those laid down by national law .

The Commission is required to respect the relevant procedural rules laid down by national law and must make sure that the competent body under national law has all that it needs to exercise its own supervisory powers .

That body, whether judicial or otherwise, cannot in this respect substitute its own assessment of the need for the investigations ordered for that of the Commission, the lawfulness of whose assessments of fact and law is subject only to review by the Court of Justice . On the other hand, it is within the powers of the national body, after satisfying itself that the decision ordering the investigation is authentic, to consider whether the measures of constraint envisaged are arbitrary or excessive having regard to the subject-matter of the investigation and to ensure that the rules of national law are complied with in the application of those measures .

8.The validity of a decision cannot be affected by acts subsequent to its adoption, with the result that any irregularities committed in the implementation of the decision are irrelevant in assessing the validity thereof .