Dow Benelux NV v Commission of the European Communities.
Date: 1989-10-17
7 It should be pointed out that, as the Court held in its judgment of 26 June 1980 in Case 136/79 National Panasonic v Commission (( 1980 )) ECR 2033, paragraph 25, Article 14(3 ) of Regulation No 17 itself lays down the essential constituents of the statement of the reasons upon which a decision ordering an investigation is based by providing that it "shall specify the subject-matter and the purpose of the investigation, appoint the date on which it is to begin and indicate the penalties provided for in Article 15(1)(c ) and Article 16(1)(d ) and the right to have the decision reviewed by the Court of Justice ".
8 As the Court held recently in its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v Commission (( 1989 )) ECR 2859, paragraph 41, 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 .
17 With regard to the complaint concerning the improper use of information obtained during the investigations carried out on 13 and 14 October 1983, it should be pointed out that it does indeed follow from Article 20(1 ) and Article 14(3 ) of Regulation No 17 that information obtained during investigations must not be used for purposes other than those indicated in the order or decision under which the investigation is carried out .
18 As has been pointed out above, in addition to professional secrecy, expressly mentioned in the aforesaid Article 20, that requirement is intended to protect the rights of the defence of undertakings, guaranteed by Article 14(3 ). Those rights would be seriously endangered if the Commission could rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof .
19 On the other hand, it cannot be concluded that the Commission is barred from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty . Such a bar would go beyond what is necessary to protect professional secrecy and the rights of the defence and would thus constitute an unjustified hindrance to the performance by the Commission of its task of ensuring compliance with the competition rules in the common market and to bring to light infringements of Articles 85 and 86 of the Treaty .
25 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 ).
30 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 ).
49 With regard to the argument put forward in the alternative by the applicant concerning the way in which the contested decision was implemented, it should be pointed out that even if the conduct of the Commission' s officials was not in accordance with their powers under Article 14 of Regulation No 17 and the contested decision, that does not affect the lawfulness of the decision . As the Court held in its judgment of 8 November 1983 in Joined Cases 96 to 102, 104, 105, 108 and 110/82 IAZ v Commission (( 1983 )) ECR 3369, paragraph 16 ), the validity of a decision cannot be affected by acts subsequent to its adoption . Consequently, there is no need in these proceedings to consider the complaints concerning the way in which the investigation was carried out .