Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 14 July 2022 ( )

Case C‑690/20 P

Casino, Guichard-Perrachon,

Achats Marchandises Casino SAS (AMC)

v

European Commission

(Appeal – Competition – Agreements, decisions and concerted practices – Administrative procedure – Commission decision ordering an inspection – Plea of illegality raised in respect of Article 20 of Regulation (EC) No 1/2003 – Alleged lack of an effective remedy against the conduct of the inspection – Action for annulment)





1. By their appeal, Casino, Guichard-Perrachon (‘Casino’) and Achats Marchandises Casino SAS (‘AMC’ and, together with Casino, ‘the appellants’) seek to have set aside in part the judgment of the General Court of the European Union of 5 October 2020 in Casino, Guichard-Perrachon and AMC v Commission ( ) (‘the judgment under appeal’), by which the General Court dismissed in part their action based on Article 263 TFEU seeking annulment of Commission Decision C(2017) 1054 final of 9 February 2017 ( ) (‘the decision at issue’), ordering Casino and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Regulation (EC) No 1/2003. ( )

Background to the dispute

2. The background to the dispute, as set out in paragraphs 2 to 8 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

3. Casino is the parent company of the Casino group, which is active, in particular, in France, mainly in the food and non-food distribution sector. Its subsidiary AMC is a referencing centre which negotiates purchasing conditions with suppliers to the Casino group’s retail chains in France.

4. Having received information about exchanges of information between Casino and other undertakings or associations of undertakings, notably Intermarché, a company also active in the food and non-food distribution sector, the European Commission adopted the decision at issue.

5. The operative part of that decision reads as follows:

‘Article 1

Casino …, and all companies directly or indirectly controlled by it, are required to submit to an inspection in relation to their possible participation in concerted practices contrary to Article 101 [TFEU] in the markets for the supply of fast-moving consumer goods, in the market for the sale of services to manufacturers of branded goods and in the markets for consumer sales of fast-moving consumer goods. Those concerted practices consist in:

(a) exchanges of information, since 2015, between undertakings and/or associations of undertakings, in particular ICDC …, and/or its members, in particular Casino and AgeCore and/or its members, in particular Intermarché, concerning discounts obtained by them in the markets for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors and prices in the market for the sale of services to manufacturers of branded products in the food products, hygiene products and maintenance products sectors, in several Member States of the European Union, notably in France, and

(b) exchanges of information, since at least 2016, between Casino and Intermarché concerning their future business strategies, particularly in terms of product range, development of shops, e-commerce and advertising policy in the markets for the supply of fast-moving consumer goods and in the markets for consumer sales of fast-moving consumer goods, in France.

The inspection may take place in any of the undertaking’s premises …

Casino shall grant the officials and other persons authorised by the Commission to conduct an inspection and the officials and other persons authorised by the Competition Authority of the Member State concerned to assist them or appointed by that Member State for that purpose access to all of its premises and means of transport during normal office hours. It shall make available for inspection the books and any other business document, irrespective of the medium on which they are stored, if the officials and other authorised persons so request and shall allow them to examine those books and documents in situ and to take or obtain copies or extracts from those books or documents in any form whatsoever. It shall permit seals to be placed on all the business premises or books or documents throughout the inspection period in so far as that is necessary for the purposes of the inspection. It shall give oral explanations immediately and in situ on the subject matter and the aim of the inspection if those officials or persons so request and shall authorise any representative or member of the staff to provide such explanations. It shall permit those explanations to be recorded in any form whatsoever.

Article 2

The inspection may commence on 20 February 2017 or shortly thereafter.

Article 3

Casino and all companies directly or indirectly controlled by it are the addressees of the present decision.

This decision shall be notified, just before the inspection, to the undertaking to which it is addressed, pursuant to Article 297(2) [TFEU].’

6. Having been informed of that inspection by the Commission, the Autorité de la concurrence (Competition Authority, France) made application to the judges of liberty and detention of the tribunal de grande instance de Créteil (Regional Court, Créteil, France) and of the tribunal de grande instance de Paris (Regional Court, Paris, France) for authorisation to carry out the visit and seizure operations at the appellants’ premises. By orders of 17 February 2017, those judges of liberty and detention authorised the visits and seizures requested as a precautionary measure (‘the orders of 17 February 2017’). As none of the measures taken during the inspection required the use of ‘enforcement authorities’ for the purposes of Article 20(6) to (8) of Regulation No 1/2003, those orders were not notified to the appellants.

7. The inspection commenced on 20 February 2017, when the Commission’s inspectors, accompanied by representatives of the Competition Authority, attended the Paris headquarters of the Casino group as well as ACM’s premises and notified the decision at issue to the appellants.

8. In the course of the inspection, the Commission, in particular, visited offices, collected material, in particular computer equipment (portable computers, mobile phones, tablets, storage devices), interviewed several individuals and copied the contents of the material collected.

9. The appellants each wrote to the Commission on 24 February 2017, setting out reservations as to the decision at issue and the conduct of the inspection carried out on the basis thereof.

Procedure before the General Court and the judgment under appeal

10. By application lodged at the Registry of the General Court on 28 April 2017, the appellants brought an action for annulment of the decision at issue under Article 263 TFEU. The Council of the European Union was granted leave to intervene in support of the form of order sought by the Commission.

11. In support of their action, the appellants relied, in essence, on three pleas in law. The first plea alleged the illegality of Article 20 of Regulation No 1/2003; the second alleged breach of the obligation to state reasons; and the third alleged breach of the right to the inviolability of the home. In the context of the last plea, the appellants claimed that there had been a disproportionate interference with their sphere of private activities, having regard, among other things, to the companies and the premises covered by the decision at issue.

12. By the judgment under appeal, the General Court, having found that the Commission did not have sufficiently serious indicia to suspect an infringement consisting of exchanges of information between Casino and Intermarché concerning their future business strategies, annulled Article 1(b) of the decision at issue. ( ) It dismissed the remainder of the action. ( )

The appeal and the forms of order sought by the parties

13. In support of their appeal, the appellants put forward four grounds of appeal. The first ground alleges that the General Court erred in law in holding that oral statements obtained by the Commission did not need to be recorded in order to serve as indicia justifying the decision at issue. The second ground alleges that the General Court erred in law in holding that the fundamental right to the inviolability of the home did not require the decision at issue to place a temporal limit on the exercise of the Commission’s powers of inspection. The third ground alleges that the General Court erred in law in holding that the fundamental right to the inviolability of the home did not require the decision at issue to place limits on the persons and the premises that may be inspected. The fourth ground alleges that the General Court erred in law in holding that the fundamental right to an effective remedy did not require there to be an autonomous and immediate remedy against the conduct of the inspections.

14. The appellants claim that the Court should set aside point 2 of the operative part of the judgment under appeal, grant the form of order sought by them at first instance and, accordingly, annul the decision at issue and order the Commission to pay the costs of the present appeal as well as the costs incurred before the General Court.

15. The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.

16. The Council contends that the Court should dismiss the appeal inasmuch as the appellants complain that the General Court erred in law in holding that the fundamental right to an effective remedy did not require there to be an autonomous and immediate remedy against the conduct of the inspections. It also contends that the Court should order the appellants to pay the costs of the appeal.

The third ground of appeal

17. At the Court’s request, I will focus my analysis on the third ground of appeal.

18. By their third ground of appeal, alleging that the General Court erred in law in holding that the fundamental right to the inviolability of the home did not require the decision at issue to place limits on the persons and the premises that may be inspected, the appellants challenge in particular paragraphs 144 to 147 of the judgment under appeal.

19. I will begin by summarising the General Court’s reasoning which is challenged by the appellants, after which I will analyse in turn each of the four complaints comprising the third ground of appeal.

The judgment under appeal

20. In paragraph 133 of the judgment under appeal, the General Court found, first of all, that it was clear from the decision at issue that neither the companies nor the premises inspected were mentioned by name since, first, the second paragraph of Article 1 of that decision indicated that ‘the inspection [could] take place in any of the undertaking’s premises’, followed by the words ‘and in particular’, which were themselves followed by two addresses, and, second, the first paragraph of Article 1 and the first paragraph of Article 3 of the decision at issue stated that ‘Casino … and all companies directly or indirectly controlled by it’ were the addressees of the inspection decision.

21. The General Court also found, in paragraph 135 of the judgment under appeal, that the very wide scope of the inspection to which such indications led had not been considered in the case-law to constitute, as such, an excessive interference in the undertakings’ sphere of private activities.

22. After recalling, in paragraphs 137 to 141 of the judgment under appeal, the case-law making the exercise of the wide inspection powers conferred on the Commission by Regulation No 1/2003 subject to conditions serving to ensure that the rights of the undertakings concerned are respected, the General Court addressed as follows the complaint raised by the appellants to the effect that the Commission was required in the present case, on the basis of the guarantees designed to protect them against disproportionate interference, to state more precisely the companies and the premises subject to the inspection.

23. First, in paragraph 144 of the judgment under appeal, the General Court stated that the information contained in the decision at issue, taken as a whole, made it possible to determine the companies and the premises subject to the inspection. It stated, in that regard, that ‘because the subject matter and the purpose of the inspection, and in particular of the markets for the goods and services concerned, are specified, and because it is stated that Casino and its subsidiaries, and also their premises, are concerned, it may readily be inferred from the [decision at issue] that Casino and its subsidiaries active in the sectors concerned by the suspected infringement – namely the markets for the supply of fast-moving consumer goods (food products, hygiene products and cleaning products), the markets for consumer sales of those goods and the market for the sale of services to manufacturers of branded products in the fast-moving consumer goods sector – are subject to the inspection, and that the inspection may be carried out at any of their premises’. ( ) Accordingly, the General Court found that ‘more precise specifications as to the scope of the inspection were therefore not essential for the protection of the applicants’ rights’. ( )

24. Second, in paragraph 145 of the judgment under appeal, the General Court rejected the appellants’ complaints that, because of the failure to specify the companies and premises concerned, the scope covered by the inspection was too wide. In that connection, it also observed that the Commission had referred in the decision at issue to ‘the basic subject of competition law, namely the undertaking, most often consisting of a parent company and its subsidiary or subsidiaries, to which the infringements and, in particular, the infringements suspected in the present case may be imputed, thus justifying the reference in the [decision at issue] to both the parent company Casino and its subsidiaries’.

25. Third, in paragraph 146 of the judgment under appeal, the General Court pointed out that ‘the lack of precision in the designation of the companies and premises referred to contributes to the successful conduct of the Commission’s inspections, since it gives the latter the necessary scope to gather the maximum amount of evidence possible and allows it to preserve a surprise effect that is essential to prevent the risk that the evidence will be destroyed or concealed’.

26. Lastly, in paragraph 147 of the judgment under appeal, the General Court noted that the orders of 17 February 2017, referred to in point 6 of this Opinion, which had authorised the visits and seizures in question as a precautionary measure in case the visit met with opposition, had specified expressly and exhaustively the premises at which those visits and seizures could be carried out. According to the General Court, an additional guarantee, consisting in the designation of the premises visited, was therefore recognised should the interference entailed by the inspection prove to be greater, in point of fact because it was carried out in spite of being opposed by the inspected companies, and recourse was had to the police on the basis of Article 20(6) to (8) of Regulation No 1/2003. As the appellants did not oppose the inspection, that additional guarantee was unnecessary.

Analysis

27. The appellants complain that the General Court infringed Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the requirement of protection against arbitrary interference by public authorities with the sphere of a person’s private activities. They argue, in essence, that in the judgment under appeal, the General Court erred in law by not holding that the decision at issue, which did not identify individually either the legal persons subject to the inspection or the premises at which it was authorised, was manifestly unlawful in that it infringed the right to the inviolability of the home.

28. As indicated earlier in this Opinion, the appellants put forward four complaints in support of their third ground of appeal.

29. By their first complaint, they claim that, contrary to what the General Court held, in particular in paragraph 144 of the judgment under appeal, the definition of the subject matter and purpose of the inspection cannot make up for the failure to place limits on the Commission’s powers as regards the identification of the persons and the premises that may be inspected. Relying on a judgment of the Bundesverfassungsgericht (Federal Constitutional Court, Germany), ( ) the appellants add that it is unacceptable that the holders of the right to respect for one’s home – in the present case, every legal person making up the Casino group – should have to deduce from the definition of the subject matter of the investigation, and therefore upon the arrival of the inspectors, that they are among the persons to be inspected.

30. In that regard, I note, as a preliminary point, that as the Commission rightly pointed out and contrary to what is claimed by the appellants, the General Court did not take the view that the definition of the subject matter and purpose of the inspection had made up for an alleged failure to place limits on the Commission’s powers.

31. By contrast, the General Court considered that observance of the right to inviolability of the home does not require the companies and the premises inspected to be mentioned by name in the inspection decision. In that regard, it recalled that similar indications to those contained in the decision at issue appeared in the decisions in question in other cases decided by the General Court ( ) and that the very wide scope of the inspection to which such indications led was not considered by the case-law to constitute, as such, an excessive interference in the undertakings’ sphere of private activities.

32. Moreover, the General Court found that, in the present case, the specifications as to the scope of the inspection contained in the decision at issue were sufficient to determine the companies and premises concerned by the inspection and that more precise specifications were not essential for the protection of the appellants’ rights. In reaching that conclusion, it considered not only the indication of the subject matter and purpose of the inspection set out in the decision at issue and, in particular, the specification of the markets for the goods and services concerned, but also the clarification in that decision that ‘Casino and its subsidiaries, and also their premises, are concerned’. It also stated that, because of that information taken as a whole, it could be readily inferred from the decision at issue that only Casino and its subsidiaries active in the markets concerned were subject to the inspection.

33. The approach taken by the General Court described above is not, in my view, inconsistent with the case-law of the Court of Justice and the European Court of Human Rights (‘the ECtHR’) in relation to visits to companies’ private business premises for the purpose, in particular, of conducting checks seeking to penalise infringements of competition law, nor does it permit the Commission to adopt measures that interfere with the right to the inviolability of the home set out in Article 7 of the Charter and Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) where those measures are disproportionate or arbitrary.

34. In that regard, it should be noted, first of all, that as the Court of Justice made clear in its judgment of 18 June 2015, Deutsche Bahn and Others v Commission ( ) (‘the judgment in Deutsche Bahn’), although it is apparent from the case-law of the ECtHR that the protection provided for in Article 8 ECHR may extend to certain commercial premises, the fact remains that that court has held that interference by a public authority could go further for professional or commercial premises or activities than in other cases.

35. Next, it must be pointed out that the Commission’s investigative powers under Article 20(2) of Regulation No 1/2003 are restricted to the Commission’s agents having the power, inter alia, to enter premises of their choosing, to have access to documents they request and make copies thereof, and to have shown to them the contents of pieces of furniture they indicate. ( ) More specifically, Article 20(2)(a) of that regulation provides that the officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered, in particular, to enter any premises, land and means of transport of undertakings and associations of undertakings. The Court has had occasion to state that such a power 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, and that both the purpose of Regulation No 1/2003 and the list of powers conferred on the Commission’s officials by Article 20 thereof show that the scope of investigations may be very wide. ( )

36. Lastly, it should be borne in mind, first, that the exercise of the Commission’s powers of inspection is accompanied by sufficient safeguards affording protection against arbitrary interference by public authorities ( ) – among which, as the Court has made clear, the obligation to state specific reasons for the inspection decision is of paramount importance ( ) – and, second, that inspections carried out, as here, on the basis of Article 20(4) of Regulation No 1/2003 do not involve the exercise of enforcement powers, which may only be used by national authorities where recourse is had to the procedure laid down in Article 20(6) to (8) of that regulation.

37. Accordingly, the General Court cannot, in my view, be criticised for finding that, where the undertakings and premises subject to inspection are not mentioned by name in the inspection decision, but the legal persons and their premises specifically covered by the investigations can be readily, and, therefore, without an excessive interpretive effort, deduced from the statement of reasons for that decision, there is no breach of the principle of proportionality which must be observed when measures are adopted entailing an interference with Article 7 of the Charter. ( )

38. The ECtHR took a similar approach in the judgment of 20 December 2010 in Société Canal Plus and Others v. France, ( ) in which it held that the fact that one of the companies inspected in the case which gave rise to that judgment was not specifically referred to in the order authorising the private premises visits at issue ‘[did] not call into question the lawfulness of the interference, since the authorisation order referred in general to the premises of “Canal Plus”’, ‘without specifying the corporate form of the various entities concerned in that respect but which were undoubtedly covered by that designation’.

39. As regards the judgment of the Bundesverfassungsgericht (Federal Constitutional Court) relied on by the appellants, I note that, in that judgment, that court held that the right to the inviolability of the home had been infringed inasmuch as the search order at issue did not make it possible to identify the company whose premises were to be searched and was, therefore, non-specific.

40. The Bundesverfassungsgericht (Federal Constitutional Court) reached that conclusion after finding that no undertaking bearing the only business name indicated in the search order occupied premises at the address stated in that order and that, from among the undertakings with offices at that address and whose business name was made up of the words used in that order, followed by additional wording, it was not possible to ascertain which was being referred to. The court also found that it was not possible to dispel the uncertainty over the identity of the company concerned by taking account of other information contained in the search order.

41. In so ruling, it did not, therefore, exclude the possibility that, where the document ordering visits to private premises does not mention the company subject to those visits by name, that company may be indirectly identified on the basis of the content of the document. In that regard, it should be noted that, by contrast, the Bundesverfassungsgericht (Federal Constitutional Court) objected to the possibility of such identification being carried out on the basis of information not included in the search order in question, such as the investigation file.

42. In the present case, the General Court took the view that the companies covered by the decision at issue were clearly identifiable on the basis of the information contained in that decision alone.

43. It should also be pointed out that one of the factors which hampered the identification of the company concerned by the search order in question in the case which gave rise to the abovementioned judgment of the Bundesverfassungsgericht (Federal Constitutional Court) was the lack of precision regarding that company’s business sector. The decision at issue clearly states the markets in which the existence of an infringement of Article 101 TFEU was presumed and, therefore, makes it possible to identify clearly the business sector of the companies subject to the inspection.

44. By the second complaint in their third ground of appeal, the appellants submit that the concept of ‘undertaking’ – which is an economic and purely functional concept used exclusively for the application of the substantive rules of competition law, such as the classification of an agreement, decision or concerted practice – cannot constitute a barrier to respect for the fundamental rights associated with the concept of ‘legal person’. They state that, in the case of companies, the only holder of the right to the inviolability of the home is the legal person, not the undertaking, which has no legal personality. It is against that background that the appellants refer to the judgment of 25 October 2011, Uralita v Commission, ( ) in which the General Court stated that when the Commission adopts a decision pursuant to Article 101 TFEU, it must identify the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be penalised for that conduct.

45. In that regard, I note, first, that the arguments put forward by the appellants in their second complaint cannot call into question the validity of the approach taken by the General Court and the conclusion it reached in paragraph 144 of the judgment under appeal.

46. Second, contrary to what the appellants claim, it is, in my view, clear from paragraph 145 of the judgment under appeal that when the General Court referred to the undertaking as a ‘basic subject of competition law’, it did not intend to assert that the ‘undertaking’ for the purposes of competition law, rather than the legal persons making up that undertaking, had to be regarded as the holder of the fundamental right to the inviolability of the home which was restricted by the adoption of an inspection measure. That reference should instead be construed as clarifying the meaning of the wording contained in the first paragraph of Article 1 and the first paragraph of Article 3 of the decision at issue, according to which ‘Casino …, and all companies directly or indirectly controlled by it’ were required to submit to an inspection, with a view to correctly delimiting the scope ratione personae of that decision.

47. In that context, the appellants’ reference to the judgment of 25 October 2011, Uralita v Commission, ( ) concerning a decision finding that an infringement had been committed and not an inspection decision, is not, as the Commission rightly pointed out, of any assistance to the appellants. Inspections are carried out at a stage at which the Commission is not yet in possession of detailed information, including regarding those responsible for the alleged infringement, and it must first verify whether its suspicions are well founded and the scale of the conduct engaged in, since the very purpose of an inspection is to gather evidence in relation to an alleged infringement.

48. By the third complaint in their third ground of appeal, the appellants dispute the General Court’s assertion in paragraph 146 of the judgment under appeal that the lack of precision in the designation of the companies and premises concerned contributes to the successful conduct of inspections. They argue that the example of jurisdictions in which the designation of the companies and/or premises concerned is required shows that such precision is not prejudicial to the successful conduct of visits to private premises.

49. In that regard, it should be noted, first, that even on the assumption that the General Court incorrectly assessed or overstated the benefits, in terms of the effectiveness of inspections, associated with the lack of precision in the designation of the companies and premises subject to the inspection, that would not be sufficient to call into question the validity of the approach it took and the conclusion it reached in paragraph 144 of the judgment under appeal.

50. Second, it must be borne in mind that national legislative or judicial practices, even on the supposition that they are common to all the Member States, cannot prevail in the application of the competition rules set out in the Treaty. ( )

51. Lastly, by the fourth complaint in their third ground of appeal, the appellants submit that, contrary to what the General Court held in paragraph 147 of the judgment under appeal, it cannot be considered that the risk of arbitrariness associated with the lack of precision in the decision at issue as regards the persons and premises that may be inspected was offset by the level of subsidiary protection provided by the possible enforcement of the orders of 17 February 2017. According to the appellants, EU law should be sufficient in itself, by directly providing individuals with all the safeguards required for the protection of their fundamental rights, and it should not be based on national legal provisions that may otherwise apply. Moreover, for those orders to be enforceable, the appellants should not have allowed the Commission officials access to their premises, thereby obliging the latter to request the involvement of the French authorities. Such opposition would have exposed the appellants to the risk of a heavy fine.

52. The appellants’ arguments seem to me once again to be based on a misreading of the judgment under appeal. The General Court did not find that the irregularity resulting from the fact that the companies and premises subject to inspection were not specifically identified was offset by the express designation, in the orders of 17 February 2017, of the premises that could be visited. It merely pointed out that, if the Commission’s intervention had entailed, as a result of the appellants’ opposition, the exercise of enforcement powers, they would have benefited from an additional guarantee, consisting in the express and exhaustive specification of the premises subject to the inspection.

53. On the basis of all the foregoing considerations, I take the view that the third ground of appeal cannot succeed.

I. Conclusion

54. In the light of all of the above, I propose that the Court should reject the third ground of appeal as unfounded.