Keywords

Summary



Keywords

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1. Actions for annulment of measures ° Measures against which actions may be brought ° Decision ordering information to be supplied pursuant to Article 11(5) of Regulation No 17 ° Interest in bringing proceedings ° Prior compliance with the contested decision ° Not relevant

(EC Treaty, Art. 173, fourth para.; Council Regulation No 17, Art. 11(5))

2. Acts of the institutions ° Statement of reasons ° Obligation ° Scope ° Decision ordering information to be supplied pursuant to Article 11(5) of Regulation No 17

(EC Treaty, Art. 190; Council Regulation No 17, Art. 11(5))

3. Competition ° Administrative procedure ° Request for information ° Powers of the Commission

(Council Regulation No 17, Art. 11(5))

Summary

1. The mere fact that in a procedure applying the competition rules the Commission requests information by way of a decision is liable to affect the legal situation of the undertaking concerned, for an undertaking faced with such a decision runs a higher risk of sanctions than one confronted with a "mere" request for information. Consequently, even though it may be disposed in principle to reply to the questions addressed to it, the undertaking cannot be deprived of its legitimate interest in preventing the Commission from moving prematurely to the decision stage without first satisfying the criteria laid down by Article 11(5) of Regulation No 17.

That interest in bringing proceedings still exists where the decision has already been complied with by its addressee at the time when the action for annulment is brought, since the action has no suspensory effect. Annulment per se of such a decision may also have legal consequences, in particular by obliging the Commission to take the measures needed to comply with the Court' s judgment and by preventing it from repeating such a practice.

2. The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Where a decision ordering information to be supplied is adopted pursuant to Article 11(5) of Regulation No 17 following an exchange of correspondence between the Commission and the undertaking concerned, repeating verbatim the request for information which formed the subject-matter of that correspondence, it cannot be argued that the decision contains any surprises and that a particularly detailed statement of reasons is consequently necessary.

3. Article 11 of Regulation No 17 lays down a two-stage procedure for the exercise by the Commission of its power to request an undertaking or association of undertakings to supply the information it considers necessary, the second stage of which, involving the adoption by the Commission of a decision specifying the information required, may only be initiated if the first stage, in which a request for information is sent, has been tried without success.

As regards the point at which the Commission is entitled to take the view that the first stage has not succeded, it should be noted that Regulation No 17 confers on the Commission wide powers of investigation and imposes on individuals the obligation to cooperate actively in the investigative measures. Given that obligation to cooperate actively, a passive reaction may in itself be enough to justify adoption of a formal decision under Article 11(5) of Regulation No 17 without the need for any manifest obstruction on the part of the undertaking concerned.