Keywords

Summary



Keywords

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

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

2.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 )

3.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 )

4.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 )

5.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 ) )

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

7.Measures adopted by the institutions - Validity - Assessment in the light of Community law alone

8.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 ) )

9.Competition - Administrative procedure - Decision ordering an investigation - Adoption on the basis of delegated powers - Legality

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

10.Accession of new Member States to the Communities - Spain - Competition - No derogation - Immediate applicability of Community rules - Commission' s powers of investigation not limited to conduct after accession

( Act of Accession of Spain, Art . 2(2 ); Regulation No 17 of the Council )

Summary

1.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 .

2.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 .

3.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 .

4.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 .

5.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 .

6.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 .

7.The validity of measures adopted by the institutions can only be judged in the light of Community law and, therefore, reference either to infringements of fundamental rights as formulated in the Constitution of a Member State or to the principles of a national constitutional structure cannot affect the validity of a Community measure or its effect in the territory of that State .

8.Article 14(3 ) of Regulation No 17 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, such as the precise definition of the relevant market or the period when the infringements were supposedly committed, 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 .

9.The decision empowering the Member of the Commission with responsibility for competition to adopt a decision under Article 14(3 ) of Regulation No 17 on behalf of and under the responsibility of the Commission does not infringe the principle of collegiate responsibility enshrined in Article 17 of the Merger Treaty .

10.Since no derogation from Regulation No 17 is provided for in the Act concerning the conditions of accession of the Kingdom of Spain, that regulation is applicable in the new Member States as from the time of accession by virtue of the general rule laid down in Article 2(2 ) of the said Act . Consequently, undertakings established in Spain could be the subject of investigations with effect from 1 January 1986 .

The subject-matter of investigations carried out by the Commission after that date into undertakings established in Spain may be limited only by the scope of the Community competition rules . No such rule limits the Commission' s powers of investigation merely to conduct after accession .