Judgment of the Court of 22 October 2002 in Case C-94/00 (Reference for a preliminary ruling from the Cour de cassation): Roquette Frères SA v Directeur général de la concurrence, de la consommation et de la répression des fraudes, Third party: Commission of the European Communities (Competition law — Article 14(3) and (6) of Regulation No 17 — Commission decision ordering an investigation — Provision of assistance by national authorities — Interpretation of the judgment of 21 September 1989 in Hoechst v Commission — General principles — Protection against arbitrary or disproportionate intervention by public authorities in the private activities of a legal person — Scope of the review which a competent national court is required to carry out for the purposes of authorising coercive measures against undertakings — Commission's duty to provide information — Duty to cooperate in good faith)
Date: 2002-12-07
Institutions: Court of Justice
Subjects: EU law - national law, competition law, fraud, interpretation of the law, seizure of goods

7.12.2002

EN

Official Journal of the European Communities

C 305/3

Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the
Court (Sixth Chamber), composed of: J.-P. Puissochet, President
of the Chamber, R. Schintgen (Rapporteur), C. Gulmann,
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,
Advocate General; R. Grass, Registrar, has given a judgment
on 17 October 2002, in which it has ruled:

Article 4(1)(d) of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital, as amended by the
Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is founded,
is to be interpreted as meaning that capital duty is chargeable on
payments made by a parent company to a capital company, which is
increasing its assets by the issue of dividend certificates, in order to
enable the acquisition of such certificates by a subsidiary of that
parent company.

( 1) OJ C 149 of 27.5.2000.

JUDGMENT OF THE COURT

of 22 October 2002

in Case C-94/00 (Reference for a preliminary ruling from
the Cour de cassation): Roquette Frères SA v Directeur
général de la concurrence, de la consommation et de la
répression des fraudes, Third party: Commission of the
European Communities (1)

(Competition law — Article 14(3) and (6) of Regulation
No 17 — Commission decision ordering an investigation —
Provision of assistance by national authorities — Interpret-
ation of the judgment of 21 September 1989 in Hoechst v
Commission — General principles — Protection against
arbitrary or disproportionate intervention by public auth-
orities in the private activities of a legal person — Scope of
the review which a competent national court is required to
carry out for the purposes of authorising coercive measures
against undertakings — Commission’s duty to provide
information — Duty to cooperate in good faith)

the proceedings pending before that court between Roquette
Frères SA and Directeur général de la concurrence, de la
consommation et de la répression des fraudes; Third party:
Commission of the European Communities, on the interpret-
ation of Article 14 of Regulation No 17 of the Council of
6 February 1962: First Regulation implementing Articles 85
and 86 of the Treaty (OJ, English Special Edition 1959-1962,
p. 87) and of the judgment in Joined Cases 46/87 and 227/88
Hoechst v Commission [1989] ECR 2859, the Court, composed
of: G.C. Rodríguez Iglesias, President,
J.-P. Puissochet,
M. Wathelet and R. Schintgen (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and
J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
L. Hewlett, Administrator,
for the Registrar, has given a
judgment on 22 October 2002, in which it has ruled:

1.

In accordance with the general principle of Community law
affording protection against arbitrary or disproportionate inter-
vention by public authorities in the sphere of the private
activities of any person, whether natural or legal, a national
court having jurisdiction under domestic law to authorise entry
upon and seizures at the premises of undertakings suspected of
having infringed the competition rules is required to verify that
the coercive measures sought in pursuance of a request by the
Commission for assistance under Article 14(6) of Regulation
No 17 of the Council of 6 February 1962: First Regulation
implementing Articles 85 and 86 of the Treaty are not arbitrary
or disproportionate to the subject-matter of the investigation
law
ordered. Without prejudice
governing the implementation of coercive measures, Community
law precludes review by the national court of the justification of
those measures beyond what is required by the foregoing general
principle.

to any rules of domestic

2.

Community law requires the Commission to ensure that the
national court in question has at its disposal all the information
which it needs in order to carry out the review which it is
required to undertake. In that regard, the information supplied
by the Commission must in principle include:

(2002/C 305/04)

(Language of the case: French)

— a description of the essential features of the suspected
infringement, that is to say, at the very least, an indication
of the market thought to be affected and of the nature of
the suspected restrictions of competition;

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-94/00: Reference to the Court under Article 234 EC
by the Cour de Cassation (France) for a preliminary ruling in

— explanations concerning the manner in which the under-
taking at which the coercive measures are aimed is thought
to be involved in the infringement in question;

C 305/4

EN

Official Journal of the European Communities

7.12.2002

— detailed explanations

showing that

the Commission
possesses solid factual information and evidence providing
grounds for suspecting such infringement on the part of
the undertaking concerned;

JUDGMENT OF THE COURT

(Sixth Chamber)

of 17 October 2002

— as precise as possible an indication of the evidence sought,
of the matters to which the investigation must relate and
of the powers conferred on the Community investigators
and

— in the event that the assistance of the national authorities
is
requested by the Commission as a precautionary
measure, in order to overcome any opposition on the part
of the undertaking concerned, explanations enabling the
national court to satisfy itself that, if authorisation for the
coercive measures were not granted on precautionary
grounds,
it would be impossible, or very difficult, to
establish the facts amounting to the infringement.

in Case C-138/00 (Reference for a preliminary ruling from
the Verwaltungsgerichtshof): Solida Raiffeisen Immobili-
en Leasing GmbH, Tech Gate Vienna Wissenschafts-
und Technologiepark GmbH v Finanzlandesdirektion für
Wien, Niederösterreich und Burgenland (1)

(Directive 69/335/EEC — Indirect taxes on the raising of
capital — Capital duty — Contribution of assets of any kind
— Meaning — Acquisition by a non-member of dividend
certificates issued by a capital company)

(2002/C 305/05)

(Language of the case: German)

3. On the other hand, the national court may not demand that it
be provided with the evidence in the Commission’s file on which
the latter’s suspicions are based.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

4. Where the national

court considers that

the information
communicated by the Commission does not fulfil the require-
ments referred to in point 2 of this operative part, it cannot,
without violating Article 14(6) of Regulation No 17 and
Article 5 of the EC Treaty (now Article 10 EC), simply dismiss
the application brought before it. In such circumstances, it is
required as rapidly as possible to inform the Commission, or
the national authority which has brought the latter’s request
before it, of the difficulties encountered, where necessary by
asking for any clarification which it may need in order to carry
out the review which it is to undertake. Not until any such
clarification is forthcoming, or the Commission fails to take any
practical steps in response to its request, may the national court
in question refuse to grant the assistance sought on the ground
that, in the light of the information available to it, it is unable
to hold that the coercive measures envisaged are not arbitrary
or disproportionate to the subject-matter of those measures.

5.

The information to be provided by the Commission to the
national court may be contained either in the investigation
decision itself or in the request made to the national authorities
under Article 14(6) of Regulation No 17, or indeed in an
answer — even one given orally — to a question put by that
court.

( 1) OJ C 149 of 27.5.2000.

In Case C-138/00: Reference to the Court under Article 234
EC by the Verwaltungsgerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between
Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna
Wissenschafts- und Technologiepark GmbH and Finanzlandes-
direktion für Wien, Niederösterreich und Burgenland, on the
interpretation of Article 5(1)(a) of Council Directive 69/335/
EEC of 17 July 1969 concerning indirect taxes on the raising
of capital (OJ, English Special Edition 1969 (II), p. 412), as
amended by the Act concerning the conditions of accession of
the Republic of Austria, the Republic of Finland and the
Kingdom of Sweden and the adjustments to the Treaties on
which the European Union is founded (OJ 1994 C 241, p. 21,
and OJ 1995 L 1, p. 1), the Court (Sixth Chamber), composed
of: J.-P. Puissochet, President of the Chamber, R. Schintgen
(Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues,
Judges; A. Tizzano, Advocate General; D. Louterman-Hubeau,
Head of Division, for the Registrar, has given a judgment on
17 October 2002, in which it has ruled:

Article 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969
concerning indirect taxes on the raising of capital, as amended by the
Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden and the
adjustments to the Treaties on which the European Union is founded,
is to be interpreted as meaning that the expression ‘assets of any kind
contributed or to be contributed by the members’ used therein covers
payments made to a capital company, which is increasing its assets
by the issue of dividend certificates, by a non-member of that company
which wishes to acquire such certificates.

(1) OJ C 176 of 24.6.2000.