Keywords

Summary



Keywords

1. Competition – Administrative procedure – Access to the file – Subject-matter – Observance of the rights of the defence

(Council Regulation No 1/2003, Art. 27(2))

2. Competition – Administrative procedure – Observance of the rights of the defence – Hearing of the undertakings – Scope of the obligation after annulment of the first decision of the Commission

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 27)

Summary

1. The right of access to the file means that the Commission must provide the undertaking concerned with the opportunity of examining all the documents in the investigation that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information.

Infringement of the right of access to the Commission’s file during the procedure prior to adoption of a decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed. In such a case, the infringement is not remedied by the mere fact that access was made possible during the judicial proceedings. As the examination undertaken by the General Court is limited to review of the pleas in law put forward, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. Moreover, belated disclosure of documents in the file does not return the undertaking which has brought the action against the Commission decision to the situation in which it would have been if it had been able to rely on those documents in presenting its written and oral observations to the Commission.

When access to the file, and particularly to exculpatory documents, is granted at the stage of the judicial proceedings, the undertaking concerned has to show, not that if it had had access to the non-disclosed documents the Commission decision would have been different in content, but only that those documents could have been useful for its defence. In that regard, when the undertaking concerned has not had access to missing documents in which it could conceivably have found evidence which would have enabled it to offer an interpretation of the facts different from the interpretation adopted by the Commission, and their content was neither certain nor capable of being ascertained, that undertaking cannot be required to state the arguments which it could have raised if it had had available to it those documents of which it could not, in practice, have been aware.

(see paras 54-57, 62-63)

2. When, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned.

However, the same is not true when the adoption of the first decision is affected by a defect, that is to say, an infringement of the rights of the defence due to the Commission’s failing to give the undertaking concerned, during the procedure leading to adoption of the first decision, sufficient access to the documents and in particular to the documents likely to be useful to the undertaking’s defence, a defect arising well before that procedural irregularity. By adopting, in such circumstances, the same decision as that which had been annulled on the basis of that procedural defect without opening a new administrative proceeding in the context of which it would have heard the undertaking concerned after giving it access to the file, the Commission infringes the rights of defence of that undertaking.

(see paras 67-71)