HeidelbergCement AG v European Commission.
Date: 2016-03-10
15


HeidelbergCement submits, in essence, that the General Court erred in law in holding that the plea alleging a failure to state reasons in the decision at issue was unfounded and had to be dismissed. That is a question of law subject to review by the Court of Justice on an appeal (see judgment in Commission v Salzgitter, C‑408/04 P, EU:C:2008:236, paragraph 55 and the case-law cited).
16


According to settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment in Commission v Sytraval and Brink’s France, Case C‑367/95 P, EU:C:1998:154, paragraph 63, and in Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraphs 31 and 32 and the case-law cited).
19


That obligation to state specific reasons is a fundamental requirement, designed not merely to show that the request for information is justified but also to enable the undertakings concerned to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (see, by analogy, with respect to inspection decisions, judgments in Dow Chemical Ibérica and Others v Commission, 97/87 to 99/87, EU:C:1989:380, paragraph 26; Roquette Frères, C‑94/00, EU:C:2002:603, paragraph 47; Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 34; and Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 56).
20


With respect to the obligation to state the ‘purpose of the request’, this relates to the Commission’s obligation to indicate the subject of its investigation in its request, and therefore to identify the alleged infringement of competition rules (see, to that effect, judgment in SEP v Commission, C‑36/92 P, EU:C:1994:205, paragraph 21).
21


In that regard, the Commission is not required to communicate to the addressee of a decision requesting information all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, providing it clearly indicates the suspicions which it intends to investigate (see, by analogy, judgment in Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 35 and the case-law cited).
23


As correctly noted by the General Court in paragraph 34 of the decision at issue, ‘the Commission is entitled to require the disclosure only of information which may enable it to investigate presumed infringements which justify the conduct of the investigation and are set out in the request for information’.
24


Since the necessity of the information must be judged in relation to the purpose stated in the request for information, that purpose must be indicated with sufficient precision, otherwise it will be impossible to determine whether the information is necessary and the Court will be prevented from exercising judicial review (see, to that effect, judgment in SEP v Commission, C‑36/92 P, EU:C:1994:205, paragraph 21).
25


The General Court also correctly held, in paragraph 39 of the judgment under appeal, that the adequacy of the statement of reasons of the decision at issue depends ‘on whether or not the putative infringements that the Commission intends to investigate are defined in sufficiently clear terms’.
37


It is true, as noted by the Commission, that a request for information is an investigative measure that is generally used as part of the investigation phase preceding the notification of the statement of objections and that the sole purpose of the preliminary investigation procedure is to enable the Commission to obtain the information and documentation necessary to check the actual existence and scope of a specific factual and legal situation (see, to that effect, judgment in Orkem v Commission, 374/87, EU:C:1989:387, paragraph 21).
38


Furthermore, although the Court has held, with respect to inspection decisions, that, even though the Commission is obliged to indicate as precisely as possible what is being sought and the matters to which the investigation must relate, it is, on the other hand, not essential, in a decision ordering an inspection, to define precisely the relevant market, to set out the exact legal nature of the presumed infringements or to indicate the period during which those infringements were allegedly committed, the Court justified that finding by the fact that inspections take place at the beginning of an investigation, at a time when precise information is not yet available to the Commission (see, to that effect, judgment in Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraphs 36 and 37).
39


However, an excessively succinct, vague and generic — and in some respects, ambiguous — statement of reasons does not fulfil the requirements of the obligation to state reasons laid down in Article 18(3) of Regulation No 1/2003 in order to justify a request for information which, as in the present case, occurred more than two years after the first inspections, and even though the Commission had already sent a number of requests for information to undertakings suspected of involvement in an infringement and several months after the decision to initiate proceedings. Given those factors, it must be stated that the decision at issue was adopted at a time when the Commission already had information that would have allowed it to present more precisely the suspicions of infringement by the companies involved.