Case T‑402/13

Orange

v

European Commission

‛Competition — Administrative procedure — Decision ordering an inspection — Proportionality — Appropriateness — Necessity — Not arbitrary — Statement of reasons’

Summary — Judgment of the General Court (Fourth Chamber), 25 November 2014

Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Clear indication of the evidence suggesting an infringement — Judicial review — Obligation on the General Court to check substantively the content of the said indicia — Conditions

Competition — Administrative procedure — Observance of the rights of the defence — Possibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objections — Obligation on the Commission to inform the undertaking of the subject-matter and purpose of the investigation at the stage of the first measure taken against it

Competition — Division of powers between the Commission and the national competition authorities — Notification of a draft decision of a national competition authority — No obligation on the Commission to relieve that authority of its competence — Irrelevant to the possibility of the Commission subsequently opening its own investigation

Competition — Division of powers between the Commission and the national competition authorities — Decision of a national competition authority accepting undertakings or finding no need to intervene — Irrelevant to application of the ne bis in idem principle

See the text of the decision. (see paras 22-24, 53, 68, 72)

It is true that the principle ne bis in idem must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes, in the sphere of competition, an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. However, the competition authorities of the Member States are not entitled to take decisions declaring that an undertaking is not liable for an infringement of Articles 101 TFEU or 102 TFEU, that is to say, decisions finding that those articles have not been infringed, for it is apparent both from the wording and the scheme of Regulation No 1/2003 and from the objective it pursues that it is reserved to the Commission alone to make a finding that there has been no infringement of Articles 101 TFEU or 102 TFEU, even if those articles are applied in a procedure conducted by a national competition authority. In this connection, the adoption of such a ‘negative’ decision on the merits by a national competition authority would risk jeopardising the uniform application of Articles 101 TFEU and 102 TFEU, which is one of the objectives of Regulation No 1/2003 highlighted by recital 1 in its preamble, given that such a decision might prevent the Commission subsequently finding that the practice in question amounts to a breach of those provisions of EU law. Consequently, when a competition authority of a Member State, pursuant to Article 5 of Regulation No 1/2003, accepts commitments or decides that there are no grounds for action, it cannot be considered to have adopted a decision finding that there was no infringement of Article 101 TFEU or of Article 102 TFEU. Therefore, an undertaking may not validly use the decision adopted by the authority in respect of it for the purpose of applying the principle ne bis in idem. (see paras 29-31)

In competition matters, whilst receipt by the Commission of the draft decisions from the national competition authority, pursuant to Article 11(4) of Regulation No 1/2003, can provide the opportunity for the Commission to exercise the right and the discretionary power conferred on it by Article 11(6) of that regulation to relieve a competition authority of a Member State of its competence to apply Articles 101 TFEU and 102 TFEU in a specific case, it does not, however, follow that if the Commission does not share the assessment relating to the application of Articles 101 TFEU and 102 TFEU set out in the draft decision notified by the competition authority of a Member State, or if the Commission has doubts in that regard, it is necessarily bound to initiate proceedings under Article 11(6) of Regulation No 1/2003, or that the non-initiation of proceedings precludes it from conducting its own investigation at a later stage in order to lead to a result other than that arrived at by the competition authority. Thus, non-intervention by the Commission under Article 11(6) of Regulation No 1/2003 cannot be regarded as acceptance of the merits of the authority’s decision under Article 102 TFEU. (see paras 35, 36, 39)

See the text of the decision. (see paras 45-47, 85, 86)

See the text of the decision. (see paras 77-81, 90)