Prysmian SpA and Prysmian Cavi e Sistemi Srl v European Commission.
Date: 2020-09-24
49


As regards the admissibility of the first ground of appeal, it must be stated that, by that ground of appeal, the appellants are challenging the General Court’s interpretation of Article 20(2)(b) and (c) of Regulation No 1/2003. It is clear from the case-law of the Court of Justice that, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. If an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 15 and the case-law cited). It follows that the first ground of appeal is admissible.
52


In the first place, as regards the preparation of the copy-images of the hard drives of the computers in question, it must be stated that it is apparent both from the wording of Article 20(2)(c) of Regulation No 1/2003 and from its context that, by permitting the Commission, by means of that provision, to ‘take or obtain’ in any form copies of or extracts from the books and other records related to the business as mentioned in Article 20(2)(b) of that regulation, the EU legislature referred to the evidence which the Commission is entitled to obtain, in order to place it in the file and, where appropriate, to use it in proceedings initiated to impose penalties in respect of infringements of EU competition law. Such evidence must therefore consist of documents covered by the subject matter of the inspection, which presupposes that the Commission has determined beforehand that that is the case (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 58).
54


However, a legal basis for making such copies is provided by Article 20(2)(b) of Regulation No 1/2003, to which the General Court also refers, and which, in relation to the undertaking or association of undertakings concerned by the inspection, permits the Commission to examine the books and other records related to the business, irrespective of the medium on which they are stored (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 60).
58


Second, while it is true that it is settled case-law that the Commission’s powers of investigation concerning competition law are strictly circumscribed (see, to that effect, judgment of 18 June 2015, DeutscheBahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 31 and the case-law cited), nonetheless that does not mean that the provisions conferring the powers of investigation on that institution must be interpreted narrowly, even though, from that point of view, it must be ensured that those powers do not infringe the rights of the undertakings concerned. Those rights are safeguarded where, as in the present case, the Commission copies the data, admittedly without a prior examination, but then assesses whether the data are relevant to the subject matter of the inspection in strict compliance with the rights of defence of the undertaking concerned, before those documents found to be relevant are placed in the file and the remainder of the copied data is deleted.
63


However, as the General Court correctly pointed out in paragraph 58 of the judgment under appeal, Article 20(2)(b) of Regulation No 1/2003 does not provide, contrary to the appellants’ claim, that the examination of the books and records related to the business of undertakings under inspection must be carried out exclusively at their premises, in all circumstances (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 78).
65


Continuing such an inspection at the Commission’s premises does not in itself, compared with conducting the inspection at the premises of the undertakings themselves, constitute a further infringement of their rights which would require that such a power for the Commission be expressly laid down and could not be inferred implicitly from the powers conferred on that institution by Article 20(1) and (2) of Regulation No 1/2003. The fact that, in certain cases, the possibility of continuing the inspection at the Commission’s premises is not indispensable to enable the Commission to conduct that inspection does not mean that such a possibility is precluded in all circumstances (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 80).
66


Indeed, there are legitimate reasons, which may lead the Commission to decide, also in the interest of the undertakings concerned, to continue, at its premises in Brussels, the inspection of the data which it has collected from the undertaking concerned. In that regard, it must be recalled, as is stated in paragraph 60 of the present judgment, that the time required for processing electronic data may prove to be considerable. To require the Commission to process such data exclusively at the premises of the undertaking under inspection, in the case of particularly large volumes of data, could have the effect of significantly extending the duration of the inspectors’ presence at that undertaking’s premises, which would be liable to hamper the effectiveness of the inspection and to increase needlessly the interference in that undertaking’s operations on account of the inspection (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 81).
68


The interpretation of Article 20(2)(b) of Regulation No 1/2003 whereby the Commission may, where appropriate, continue at its premises in Brussels the examination which it legitimately commenced on the premises of the undertaking or association of undertakings under inspection, is not called into question by the appellants’ argument that it is only by way of exception that Article 21 of that regulation empowers the Commission to exercise its powers of inspection ‘in any other premises’. Indeed, Article 21 of that regulation relates to a completely different situation from that concerned by Article 20 of the regulation, namely the possibility for the Commission to conduct inspections at premises other than the business premises of the undertaking concerned, such as the homes or means of transport of its members of staff, where there is a reasonable suspicion that books or other business records relating to the subject matter of the inspection are kept there which may be relevant to prove a serious infringement of Article 101 or 102 TFEU (see, to that effect, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 85).
69


Nor is the interpretation of Article 20(2)(b) of Regulation No 1/2003 referred to in the previous paragraph called into question by the appellants’ argument that such an interpretation would empower the Commission to conduct remote inspections or to order the companies concerned to transmit to the Commission copies of entire hard drives, provided that it guarantees appropriate safeguards. The possibility of the Commission continuing, at its premises in Brussels, the examination which it commenced at the premises of the undertaking which is the subject of the inspection has no bearing on the question whether that institution is entitled, on the basis of Article 20(2)(b) and (c) of Regulation No 1/2003, to avail itself of the investigative measures suggested by the appellants. It must be stated in that regard that the fact that the Commission continues an inspection at its own premises means that what is involved is the continuation of one and the same inspection, commenced at the premises of such an undertaking, and not a new examination, relating to a third party (see, to that effect, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 84).
70


It must, however, be pointed out that the Commission can make use of the possibility, on the basis of Article 20(2)(b) of Regulation No 1/2003, of continuing, at its premises in Brussels, its examination of the books and other business records of the undertaking under inspection, only where it can legitimately take the view that it is justified in doing so in the interests of the effectiveness of the inspection or to avoid excessive interference in the operations of the undertaking concerned (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 87).
72


In those circumstances, it must be held that the Commission did not act unlawfully in deciding to continue the inspection in question at its premises in Brussels. Indeed, having regard to the elements of fact found by the General Court, the Commission could legitimately take the view that it was justified in continuing that inspection at its premises in Brussels, thereby avoiding extending the duration of the inspectors’ presence at the premises of appellants, in the interests of the effectiveness of the inspection and to avoid excessive interference in the operations of those undertakings (see, by analogy, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 89).
73


Finally, as already stated in paragraph 65 of the present judgment, the possibility for the Commission to continue its examination of the books and other records related to the business of an undertaking on the basis of Article 20(2)(b) of Regulation No 1/2003 at its premises in Brussels is subject to the condition that such continuation does not give rise to any infringement of the rights of the defence and does not constitute an additional encroachment on the rights of the undertakings concerned which goes further than that inherent in an inspection at their premises. Such an encroachment would have to be identified if the continuation of that examination at the Commission’s premises in Brussels gave rise to additional costs for the undertaking under inspection solely as a result of that continuation. It follows that, where that continuation is capable of giving rise to such additional costs, the Commission may undertake that continuation only where it agrees to reimburse those if a duly reasoned request to that effect is presented by the undertaking concerned (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 90).
85


It is true that the Court has stated, as to the circumstances in which an entity that has not committed an infringement of EU competition law may nonetheless be penalised for that infringement, that this situation arises if the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect. If, however, the entity which committed the infringement continues both to exist in law and to carry on economic activities, the Commission is in principle required to impose the fine in question on that entity (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraphs 144 and 145).
86


However, it also follows from the Court’s case-law that, when an entity that has committed an infringement of EU competition law is subject to a legal or organisational change, this change does not necessarily create a new entity free of liability for the unlawful conduct attributable to its predecessor in law provided that, at the least, from an economic point of view, the two entities are identical. If undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes, the objective of suppressing conduct that infringes EU competition law and preventing its reoccurrence by means of deterrent penalties would be jeopardised (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 40 and the case-law cited).
87


The Court has thus held that where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not per se preclude imposing a penalty on the entity to which its economic activities were transferred, in particular, where those entities have been under the control of the same person and have, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 41 and the case-law cited).
101


It must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law of the Court, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51).
104


First, the appellants rely on the Court’s case-law arising, inter alia, from the judgment of 18 July 2013, Dow Chemical and Others v Commission (C‑499/11 P, EU:C:2013:482), where it held, in paragraph 50 of that judgment, that where the Commission adopts, in respect of a cartel, one specific method for determining whether the parent companies concerned are liable for the infringements engaged in by their subsidiaries, it must – unless there are special circumstances – use the same criteria for all those parent companies.
105


As regards that argument, it should be noted that the facts of the case which gave rise to that judgment concerned a situation in which it was clear from the decision of the Commission that the Commission had chosen, as regards the attribution of liability to a parent company for an infringement committed by a subsidiary of the parent company, one specific method for the determination of the liability of the parent companies at issue which it was therefore required to apply to all the undertakings involved in that infringement (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 50, 53 and 59). Even assuming that that case-law could be applied to the attribution of liability for an infringement on the basis of the principle of economic continuity, it must be held that the appellants have failed to show that the Commission chose to apply a method for the application of that principle which departs from the general rules. It is therefore not apparent from the decision at issue that one specific method should have been followed for all the undertakings involved in the infringement at issue.
108


However, as the General Court was correct to state in paragraph 146 of the judgment under appeal, it is clear from the Court of Justice’s case-law that compliance with the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited).
126


In that regard, it must be borne in mind that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
130


In substance, it must be borne in mind that, according to the Court’s case-law, for the purpose of demonstrating that an undertaking has participated in a single infringement of EU competition law, it must be shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).