Hoechst AG v Commission of the European Communities.
Date: 1989-09-21
12 It should be noted, before the nature and scope of the Commission' s powers of investigation under Article 14 of Regulation No 17 are examined, that that article cannot be interpreted in such a way as to give rise to results which are incompatible with the general principles of Community law and in particular with fundamental rights .
14 In interpreting Article 14 of Regulation No 17, regard must be had in particular to the rights of the defence, a principle whose fundamental nature has been stressed on numerous occasions in the Court' s decisions ( see, in particular, the judgment of 9 November 1983 in Case 322/81 Michelin v Commission (( 1983 )) ECR 3461, paragraph 7 ).
15 In that judgment, the Court pointed out that the rights of the defence must be observed in administrative procedures which may lead to the imposition of penalties . But it is also necessary to prevent those rights from being irremediably impaired during preliminary inquiry procedures including, in particular, investigations which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable .
16 Consequently, although certain rights of the defence relate only to the contentious proceedings which follow the delivery of the statement of objections, other rights, such as the right to legal representation and the privileged nature of correspondence between lawyer and client ( recognized by the Court in the judgment of 18 May 1982 in Case 155/79 AM & S v Commission (( 1982 )) ECR 1575 ) must be respected as from the preliminary-inquiry stage .
19 None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law . In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive ( judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v Commission (( 1962 )) ECR 449 ).
29 In that regard, it should be noted first that the Commission is required to specify the subject-matter and purpose of the investigation . That obligation is a fundamental requirement not merely in order to show that the investigation to be carried out on the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate while at the same time safeguarding the rights of the defence .
31 Article 14 of Regulation No 17 deals in the first place with investigations carried out with the cooperation of the undertakings concerned, either voluntarily, where there is a written authorization, or by virtue of an obligation arising under a decision ordering an investigation . In the latter case, which is the situation here, the Commission' s officials have, inter alia, the power to have shown to them the documents they request, to enter such premises as they choose, and to have shown to them the contents of any piece of furniture which they indicate . On the other hand, they may not obtain access to premises or furniture by force or oblige the staff of the undertaking to give them such access, or carry out searches without the permission of the management of the undertaking .
41 As has been stated above, the Commission' s obligation to specify the subject-matter and purpose of the investigation constitutes a fundamental guarantee of the rights of the defence of the undertakings concerned . It follows that the scope of the obligation to state the reasons on which decisions ordering investigations are based cannot be restricted on the basis of considerations concerning the effectiveness of the investigation . Although the Commission is not required to communicate to the addressee of a decision ordering an investigation all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, it must none the less clearly indicate the presumed facts which it intends to investigate .
54 According to Article 1 of Regulation No 99/63, "before consulting the Advisory Committee on Restrictive Practices and Dominant Positions, the Commission shall hold a hearing pursuant to Article 19(1 ) of Regulation No 17 ". That provision confirms that the hearing of the undertakings concerned and the consultation of the Advisory Committee are necessary in the same situations .
55 In determining whether the Commission was required to hear the applicant and consult the Advisory Committee before adopting the decision imposing the periodic penalty payment, it should be borne in mind that the fixing of periodic penalty payments under Article 16 of Regulation No 17 necessarily involves two stages . In its first decision, referred to in Article 16(1 ), the Commission imposes a periodic penalty payment expressed in terms of a number of units of account per day of delay, calculated from a date fixed by it . Since that decision does not determine the total amount of the periodic penalty payment, it cannot be enforced . That amount can be definitively fixed only in another decision .
63 It should be noted in that regard that the applicant did not merely oppose specific measures, which, in its view, went beyond the powers of the Commission' s officials; it refused to cooperate in any way in the implementation of the decision addressed to it ordering the investigation .
64 Such conduct is incompatible with the obligation imposed upon all persons subject to Community law to acknowledge that measures adopted by the institutions are fully effective so long as they have not been declared invalid by the Court and to recognize their enforceability unless the Court has decided to suspend the operation of the said measures ( see, in particular, the judgment of 13 February 1979 in Case 101/78 Granaria v Hoofdproduktschap voor Akkerbouwprodukten (( 1979 )) ECR 623, paragraph 5 ) and cannot be justified on the basis of superior legal interests .