CELEX: C2002/305/04
Language: en
Date: 2002-12-07 00:00:00
Title: 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)

7.12.2002                EN                      Official Journal of the European Communities                                                C 305/3
Republic of Finland and the Kingdom of Sweden and the                       the proceedings pending before that court between Roquette
adjustments to the Treaties on which the European Union is                  Frères SA and Directeur général de la concurrence, de la
founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the                  consommation et de la répression des fraudes; Third party:
Court (Sixth Chamber), composed of: J.-P. Puissochet, President             Commission of the European Communities, on the interpret-
of the Chamber, R. Schintgen (Rapporteur), C. Gulmann,                      ation of Article 14 of Regulation No 17 of the Council of
F. Macken and J.N. Cunha Rodrigues, Judges; A. Tizzano,                     6 February 1962: First Regulation implementing Articles 85
Advocate General; R. Grass, Registrar, has given a judgment                 and 86 of the Treaty (OJ, English Special Edition 1959-1962,
on 17 October 2002, in which it has ruled:                                  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,
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      M. Wathelet and R. Schintgen (Presidents of Chambers),
                                                                            C. Gulmann, D.A.O. Edward, A. La Pergola (Rapporteur),
Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden and the                   P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr and
                                                                            J.N. Cunha Rodrigues, Judges; J. Mischo, Advocate General;
adjustments to the Treaties on which the European Union is founded,
                                                                            L. Hewlett, Administrator, for the Registrar, has given a
is to be interpreted as meaning that capital duty is chargeable on
payments made by a parent company to a capital company, which is            judgment on 22 October 2002, in which it has ruled:
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.
                                                                            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
                  JUDGMENT OF THE COURT                                           the coercive measures sought in pursuance of a request by the
                                                                                  Commission for assistance under Article 14(6) of Regulation
                        of 22 October 2002                                        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
in Case C-94/00 (Reference for a preliminary ruling from                          ordered. Without prejudice to any rules of domestic law
the Cour de cassation): Roquette Frères SA v Directeur                            governing the implementation of coercive measures, Community
général de la concurrence, de la consommation et de la                            law precludes review by the national court of the justification of
répression des fraudes, Third party: Commission of the                            those measures beyond what is required by the foregoing general
                    European Communities ( 1)                                     principle.
(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                     2.    Community law requires the Commission to ensure that the
Commission — General principles — Protection against                              national court in question has at its disposal all the information
arbitrary or disproportionate intervention by public auth-                        which it needs in order to carry out the review which it is
orities in the private activities of a legal person — Scope of                    required to undertake. In that regard, the information supplied
the review which a competent national court is required to                        by the Commission must in principle include:
carry out for the purposes of authorising coercive measures
against undertakings — Commission’s duty to provide
        information — Duty to cooperate in good faith)
                           (2002/C 305/04)                                        —     a description of the essential features of the suspected
                                                                                        infringement, that is to say, at the very least, an indication
                     (Language of the case: French)                                     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)
                                                                                  —     explanations concerning the manner in which the under-
In Case C-94/00: Reference to the Court under Article 234 EC                            taking at which the coercive measures are aimed is thought
by the Cour de Cassation (France) for a preliminary ruling in                           to be involved in the infringement in question;
 ---pagebreak--- C 305/4                   EN                         Official Journal of the European Communities                                           7.12.2002
      —      detailed explanations showing that the Commission                                    JUDGMENT OF THE COURT
             possesses solid factual information and evidence providing
             grounds for suspecting such infringement on the part of                                       (Sixth Chamber)
             the undertaking concerned;
                                                                                                         of 17 October 2002
      —      as precise as possible an indication of the evidence sought,
             of the matters to which the investigation must relate and          in Case C-138/00 (Reference for a preliminary ruling from
             of the powers conferred on the Community investigators             the Verwaltungsgerichtshof): Solida Raiffeisen Immobili-
             and                                                                en Leasing GmbH, Tech Gate Vienna Wissenschafts-
                                                                                und Technologiepark GmbH v Finanzlandesdirektion für
                                                                                          Wien, Niederösterreich und Burgenland ( 1)
      —      in the event that the assistance of the national authorities
             is requested by the Commission as a precautionary                  (Directive 69/335/EEC — Indirect taxes on the raising of
             measure, in order to overcome any opposition on the part           capital — Capital duty — Contribution of assets of any kind
             of the undertaking concerned, explanations enabling the            — Meaning — Acquisition by a non-member of dividend
             national court to satisfy itself that, if authorisation for the                 certificates issued by a capital company)
             coercive measures were not granted on precautionary
             grounds, it would be impossible, or very difficult, to                                         (2002/C 305/05)
             establish the facts amounting to the infringement.
                                                                                                     (Language of the case: German)
3.    On the other hand, the national court may not demand that it
                                                                                (Provisional translation; the definitive translation will be published
      be provided with the evidence in the Commission’s file on which
                                                                                                     in the European Court Reports)
      the latter’s suspicions are based.
4.    Where the national court considers that the information                   In Case C-138/00: Reference to the Court under Article 234
      communicated by the Commission does not fulfil the require-               EC by the Verwaltungsgerichtshof (Austria) for a preliminary
      ments referred to in point 2 of this operative part, it cannot,           ruling in the proceedings pending before that court between
      without violating Article 14(6) of Regulation No 17 and                   Solida Raiffeisen Immobilien Leasing GmbH, Tech Gate Vienna
      Article 5 of the EC Treaty (now Article 10 EC), simply dismiss            Wissenschafts- und Technologiepark GmbH and Finanzlandes-
      the application brought before it. In such circumstances, it is           direktion für Wien, Niederösterreich und Burgenland, on the
      required as rapidly as possible to inform the Commission, or              interpretation of Article 5(1)(a) of Council Directive 69/335/
      the national authority which has brought the latter’s request             EEC of 17 July 1969 concerning indirect taxes on the raising
      before it, of the difficulties encountered, where necessary by            of capital (OJ, English Special Edition 1969 (II), p. 412), as
      asking for any clarification which it may need in order to carry          amended by the Act concerning the conditions of accession of
      out the review which it is to undertake. Not until any such               the Republic of Austria, the Republic of Finland and the
      clarification is forthcoming, or the Commission fails to take any         Kingdom of Sweden and the adjustments to the Treaties on
      practical steps in response to its request, may the national court        which the European Union is founded (OJ 1994 C 241, p. 21,
      in question refuse to grant the assistance sought on the ground           and OJ 1995 L 1, p. 1), the Court (Sixth Chamber), composed
      that, in the light of the information available to it, it is unable       of: J.-P. Puissochet, President of the Chamber, R. Schintgen
      to hold that the coercive measures envisaged are not arbitrary            (Rapporteur), V. Skouris, F. Macken and J.N. Cunha Rodrigues,
      or disproportionate to the subject-matter of those measures.              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:
5.    The information to be provided by the Commission to the
      national court may be contained either in the investigation               Article 5(1)(a) of Council Directive 69/335/EEC of 17 July 1969
      decision itself or in the request made to the national authorities        concerning indirect taxes on the raising of capital, as amended by the
      under Article 14(6) of Regulation No 17, or indeed in an                  Act concerning the conditions of accession of the Republic of Austria,
      answer — even one given orally — to a question put by that                the Republic of Finland and the Kingdom of Sweden and the
      court.                                                                    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
( 1) OJ C 149 of 27.5.2000.                                                     which wishes to acquire such certificates.
                                                                                (1 ) OJ C 176 of 24.6.2000.