Joined Cases T-458/09 and T-171/10

Slovak Telekom a.s.

v

European Commission

‛Competition — Administrative procedure — Decision requesting information — Necessity for the information sought — Principle of sound administration — Duty to state reasons — Proportionality’

Summary of the Judgment

In the context of a procedure for infringement of the competition rules, in order to ensure the effectiveness of Article 18(3) of Regulation No 1/2003, the Commission is entitled to compel undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anti-competitive conduct. The term ‘necessary information’ must be interpreted according to the objectives for the achievement of which the powers of investigation have been conferred upon the Commission. The requirement that there must exist a correlation between the request for information and the putative infringement is satisfied, since 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 would help it to determine whether the alleged infringement had taken place. In addition, the Commission is entitled to require the disclosure only of information which may enable it to investigate putative infringements which justify the conduct of the inquiry and are set out in the request for information. Moreover, given its broad powers of investigation and assessment, it is for the Commission to decide whether particular items of information which it requests from the undertakings concerned are necessary. Furthermore, an undertaking which is being investigated is subject to an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation. In the light of the wording and purpose of Article 18(1) of Regulation No 1/2003, and in accordance with the principles set out above, the powers of investigation provided for in that provision are subject only to the requirement that the information requested be necessary, which it is for the Commission to evaluate, in order to assess the putative infringements justifying the undertaking of the investigation and, in particular, in the present case, to detect any abuse of a dominant position prohibited by Article 82 EC and Article 102 TFEU. Thus, any interpretation of Article 18(1) of Regulation No 1/2003 which amounts to prohibiting the Commission, as a matter of principle, from requesting from an undertaking information relating to a period during which the competition rules of the European Union did not apply, even though such information is necessary for the detection of a possible infringement of those rules from the point at which they become applicable, would risk depriving that provision of its effectiveness and would go against the Commission’s duty to examine carefully and impartially all the relevant evidence in the case under investigation. Consequently, it cannot be claimed that, as a matter of principle, the Commission could not rely on information relating to an undertaking’s conduct prior to the accession of the Member State to the European Union to assess whether its post-accession practices were compatible with the European Union competition rules. (see paras 41-45, 52)

In the context of a procedure seeking to find an infringement of Articles 82 EC or 102 TFEU, information and documents which predate the accession of a Member State to the European Union cannot be regarded as not, in principle, being relevant for the Commission’s assessment of a possible abuse of a dominant position by an undertaking established in that Member State, on account of the fact that the finding of such infringements could be based only on objective data which post-dates the infringement. In particular, information and documents, which predate the period of infringement, which are capable of establishing the existence of an exclusion strategy on the part of an undertaking, may help the Commission to determine the gravity of a possible infringement and, consequently, may be regarded as necessary for the Commission to be able to carry out the duties assigned to it under Regulation No 1/2003, for the purposes of Article 18(1) thereof. Therefore, the fact that the concept of abuse of a dominant position is an objective concept and implies no intention to cause harm does not lead to the conclusion that the intention to resort to practices falling outside the scope of competition on the merits is in all events irrelevant, since that intention can still be taken into account to support the conclusion that the undertaking concerned abused a dominant position, even if that conclusion should primarily be based on an objective finding that the abusive conduct actually took place. The Commission is therefore entitled to examine the internal documentation of the undertakings concerned, since such documentation may indicate whether the exclusion of competition was intended or, on the contrary, suggest another explanation for the practices under consideration. (see paras 60-62)

The Commission does not infringe the principle of sound administration where, for the purpose of proving an infringement of Article 82 EC after the accession of a Member State to the European Union, it attempts to obtain information about the conduct of an undertaking, established in that State, on the market at a time when it was not required to comply with that provision. It is in particular as a result of the Commission’s duty to examine carefully and impartially all the relevant aspects of the individual case that it is required to prepare a decision with the required level of diligence and to take its decision on the basis of all the information which might influence that decision. To that end, the Commission has the power to request undertakings to provide ‘all necessary information’, in accordance with Article 18(1) of Regulation No 1/2003. Information and documents, even those which predate the accession of a Member State to the European Union and the period of infringement, may prove necessary for the Commission to be able to undertake the tasks assigned to it by that regulation in an impartial and fair manner. (see paras 70-72)

Article 18(3) of Regulation No 1/2003 defines the information required in a decision requesting information. Accordingly, that provision states that the Commission shall state the legal basis and purpose of the request, specify what information is required and fix the time-limit within which it is to be provided. Moreover, the provision 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. In that regard, the Commission is not required to communicate to the addressee of a decision requiring information to be supplied 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. (see paras 76-77)