Deutsche Bahn AG and Others v European Commission.
Date: 2015-06-18
19. It should be noted in that regard that the fundamental right to the inviolability of the home is a general principle of EU law (see, to that effect, judgments in Hoechst  v Commission , 46/87 and 227/88, EU:C:1989:337, paragraph 19; Dow Benelux  v Commission , 85/87, EU:C:1989:379, paragraph 30; and Dow Chemical Ibérica and Others  v Commission , 97/87 to 99/87, EU:C:1989:380, paragraph 16) as now expressed in Article 7 of the Charter, which corresponds to Article 8 of the ECHR.
23. It must be pointed out in that regard that the Commission’s investigative powers under Article 20(2) of Regulation No 1/2003 are restricted to the Commission’s agents having the power, inter alia, to enter premises of their choosing, to have access to documents they request and make copies thereof, and to have shown to them the contents of pieces of furniture they indicate (see, to that effect, judgment in Hoechst  v Commission , 46/87 and 227/88, EU:C:1989:337, paragraph 31).
31. On the other hand, it is settled case-law that the Commission’s powers of investigation are strictly defined, encompassing inter alia the exclusion of non-business documents from the scope of the investigation, the right to legal assistance, the preservation of the confidentiality of correspondence between legal counsel and clients, the obligation to state reasons for the inspection decision and the option of bringing proceedings before the EU courts (see, to that effect, judgment in Roquette Frères , C‑94/00, EU:C:2002:603, paragraphs 44 to 50).
34. The review provided for by the Treaties means that the European Union courts carry out an in-depth review of the law and of the facts on the basis of the evidence adduced by the applicant in support of the pleas in law put forward (see, to that effect, judgments in Chalkor  v Commission , C‑386/10 P, EU:C:2011:815, paragraph 62, and CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 44).
45. Lastly, in paragraph 113 of the judgment under appeal, the General Court referred, in relation to the safeguards provided for under EU law in order to ensure observance of the right to an effective legal remedy, to the Court’s case-law to the effect that if the Community judicature annuls the inspection decision or holds that there has been an irregularity in the conduct of the investigation, the Commission will be prevented from using, for the purposes of infringement proceedings, any documents or evidence which it might have obtained in the course of that investigation (judgment in Roquette Frères , C‑94/00, EU:C:2002:603, paragraph 49).
47. It must be remembered in that regard that that fundamental right constitutes a general principle of EU law, as currently expressed in Article 47 of the Charter, which is the equivalent under EU law of Article 6(1) of the ECHR (see, to that effect, inter alia, judgments in Chalkor  v Commission , C‑386/10 P, EU:C:2011:815, paragraph 52 and the case-law cited; Telefónica and Telefónica de España  v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 40; and CB  v Commission , C‑67/13 P, EU:C:2014:2204, paragraph 43).
51. By its conduct, the Commission knowingly created a risk that the information communicated to its agents concerning the DUSS file would lead them to direct their attention specifically to the documents pertaining to DUSS, even though they did not relate to the subject-matter of the first inspection. Consequently, and contrary to what the General Court held, the exception to the prohibition on using documents unrelated to the subject-matter of the inspection, which was allowed by the Court in its judgment in Dow Benelux  v Commission  (85/87, EU:C:1989:379), was not applicable.
56. As to the merits, it must be borne in mind that Article 20(4) of Regulation No 1/2003 requires the Commission to state reasons for the decision ordering an investigation by specifying its subject-matter and purpose. As the Court has held, this is a fundamental requirement, designed not merely to show that the proposed entry onto the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (judgments in Roquette Frères , C‑94/00, EU:C:2002:603, paragraph 47, and Nexans and Nexans France  v Commission , C‑37/13 P, EU:C:2014:2030, paragraph 34).
57. Moreover, under Article 28(1) of Regulation No 1/2003, information obtained during investigations must not be used for purposes other than those indicated in the inspection warrant or decision (see, to that effect, judgment in Dow Benelux  v Commission , 85/87, EU:C:1989:379, paragraph 17).
58. The Court stated in that regard that such a requirement is aimed at preserving, in addition to business secrecy, expressly referred to in Article 28, undertakings’ rights of defence, which Article 20(4) is intended to safeguard. Those rights would be seriously endangered if the Commission were able to rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof (see, to that effect, judgment in Dow Benelux  v Commission , 85/87, EU:C:1989:379, paragraph 18).
59. On the other hand, it cannot be concluded therefrom 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 required to safeguard professional secrecy and the rights of the defence and would thus constitute an unjustified hindrance to the Commission in the accomplishment of its task of ensuring compliance with the competition rules in the common market and identifying infringements of Articles 101 TFEU and 102 TFEU (see, to that effect, judgment in Dow Benelux  v Commission , 85/87, EU:C:1989:379, paragraph 19).
60. It follows from the foregoing that, on the one hand, the Commission is required to state reasons for its decision ordering an insp ection. On the other hand, if the statement of reasons for that decision circumscribes the powers conferred on the Commission’s agents, a search may be made only for those documents coming within the scope of the subject-matter of the inspection.