Nexans France and Nexans v European Commission.
Date: 2020-07-16
58


In that regard, 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 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.
60


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.
78


However, as the General Court correctly pointed out in paragraph 60 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.
80


As was observed, in essence, by the Advocate General in point 76 of her Opinion, continuing such an examination 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 examination 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.
81


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 66 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 needlessly increase the interference in that undertaking’s operations on account of the inspection.
84


It is also necessary to reject the appellants’ argument that such an interpretation of Article 20(2)(b) of Regulation No 1/2003 would enable the Commission to examine and copy documents held by third parties outside the premises of the undertaking which is the subject of the inspection. 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) of Regulation No 1/2003, to examine and copy documents held by third parties. 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.
85


Nor is the interpretation of Article 20(2)(b) of Regulation No 1/2003 set out in paragraph 83 above called into question by the appellants’ argument that Article 21(4) of Regulation No 1/2003, which refers, as regards inspections of premises other than those of the undertaking under inspection, to the Commission’s powers referred to in Article 20(2)(a) to (c) of Regulation No 1/2003, would be rendered meaningless if it were to be inferred from Article 20 that the Commission is permitted to inspect documents located elsewhere than at the premises of that undertaking. Indeed, Article 21 of Regulation No 1/2003 relates to a completely different situation from that concerned by Article 20 of that 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.
87


It must however, be pointed out, as the Advocate General does in points 67 and 78 of her Opinion, 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.
89


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 Nexans France, in the interests of the effectiveness of the inspection and to avoid excessive interference in the operations of that undertaking.
90


Finally, as already stated in paragraph 80 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.