1 By their appeal, Alcogroup SA and Alcodis SA ask the Court to set aside the judgment of the General Court of the European Union of 10 April 2018, Alcogroup and Alcodis v Commission (T‑274/15, not published, the judgment under appeal, EU:T:2018:179), by which the General Court dismissed as inadmissible their application for annulment, first, of Commission Decision C(2015) 1769 final of 12 March 2015, addressed to Alcogroup and to all of the companies directly or indirectly controlled by it, including Alcodis, relating to proceedings pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 (AT.40244 - Bioethanol) (‘the second inspection decision’), and, second, of the Commission’s letter of 8 May 2015 addressed to Alcogroup in the context of the AT.40244 - Bioethanol and AT.40054 - Oil and Biofuel Markets investigations (‘the letter of 8 May 2015’).
2 Article 20(1) and (4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), entitled ‘The Commission’s powers of inspection’, provides: ‘1. In order to carry out the duties assigned to it by this regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings. … 4. Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice …’
3 The facts giving rise to the dispute were set out by the General Court in paragraphs 1 to 27 of the judgment under appeal, as follows: ‘1 The applicants, Alcogroup and its subsidiary Alcodis, are active in the production, processing and marketing of ethanol used as an additive in the production of fossil fuels and as a fuel as such, on the one hand, and as a traditional ingredient in, for example, the production of beverages and the manufacture of pharmaceutical, chemical and cosmetic products, on the other. First investigation and first inspection 2 Following a complaint lodged in March 2013, the European Commission carried out inspections, in May 2013, on the premises of Platts (U.K.) Ltd and on the premises of undertakings active in the crude oil, refined petroleum products and biofuel sectors. Platts (U.K.) is an undertaking which has developed and offers the public a method for the assessment of ethanol prices called “market-on-close”. Those inspections were carried out in the context of a Commission investigation into both how that method works and possible collusion between undertakings regarding its manipulation (“the first investigation”). The case was registered at the Commission as AT.40054 - Oil and Biofuel Markets (formerly OCTOPUS). 3 In that context, the Commission adopted a decision dated 29 September 2014 ordering Alcogroup and all the undertakings controlled by it directly or indirectly, including Alcodis, to submit to an inspection under Article 20(4) of [Regulation No 1/2003]. The inspection took place on the applicants’ shared premises from 7 to 10 October 2014. Fifteen officials were authorised by the Commission to carry out that inspection, accompanied by representatives of the Belgian competition authority, and the applicants sought the assistance of their lawyers. 4 Following the first inspection, a large number of documents and emails were drafted and exchanged between the applicants and their lawyers with a view to their defence. According to the applicants, in order to indicate clearly that those documents and emails were covered by professional secrecy, each item of correspondence was, as a rule, labelled “legally privileged” in the title or placed in a file entitled “legally privileged”. The second investigation and the second inspection 5 In parallel with the first investigation, the Commission opened the AT.40244 - Bioethanol (formerly AQUAVIT) investigation concerning potential agreements and potential concerted practices aimed at coordinating the behaviour of undertakings active in the bioethanol marketing sector in the European Economic Area (EEA), the sharing of markets and customers, and the exchange of information (“the second investigation”). 6 In the context of the second investigation, the Commission adopted the [second inspection decision]. 7 On 16 March 2015, the Commission authorised eight officials to carry out the second inspection on the applicants’ premises. Of those officials, only one had been in the group of inspectors authorised to carry out the first inspection. In addition, two agents from the Belgian competition authority who had attended the first inspection also participated in the second. Finally, P.B. and L.B. (together, “the applicants’ lawyers”) attended the second inspection. 8 The second inspection took place over the course of four days, from Tuesday, 24 March to Friday, 27 March 2015. First day of the second inspection (24 March 2015) 9 The applicants’ lawyers, from the first day of the second inspection, made a request in principle to the Commission that the confidentiality of the defence documents drawn up subsequent to the first inspection be respected. 10 The parties disagree as to the measures requested by the applicants and accepted, in principle, by the Commission to guarantee such confidentiality and as to the actual conduct on the first day of that inspection. 11 In any case, it is not disputed that the Commission investigators carried out IT searches in order to identify documents of potential interest for the purposes of the second investigation. They examined the servers, hard drives and electronic devices of certain individuals with important roles at the applicants’ firms. Before examining documents individually, the investigators copied the documents identified to the Commission’s computers on the premises using digital investigation software called “Nuix” which allows indexing and searching by specific key words. Second day of the second inspection (25 March 2015) 12 On 25 March 2015, the investigators began the individual analysis of the documents copied to the Commission’s computers. 13 At the end of that day, the Commission saved to a USB key a list of 59 series of documents “to be exported”. 14 It transpired that five emails among the 59 series of documents were labelled as “legally privileged” in either their subject line or title. 15 Upon reading the list of the documents “to be exported” on the USB key, the applicants’ lawyers objected to the seizure of those emails and their attachments, which the Commission accepted. Consequently, those documents were not added to the Commission’s file. Third day of the second inspection (26 March 2015) 16 On the third day of the inspection, the Commission informed the applicants that, where a single document was labelled as “to be exported”, the Nuix software by default brought up all of the related documents, referred to as “the entire family tree”, and not only the individual item marked for export. That explains why the five emails that were “potentially protected” by legal professional privilege, described in paragraph 14 above, appeared in the list of the documents “to be exported”, giving the impression that all of the documents had been marked for export. 17 In addition, the investigators excluded the documents labelled as “legally privileged” from the data copied to the Commission’s computers and searched for using keywords. They placed them directly into a separate digital file for individual examination by an investigator in the presence of one of the applicants’ lawyers. In that way 22000 documents bearing the words “legally privileged” were separated out. During that individual check, the applicants’ lawyers were careful to hide the preview bar of the Nuix software. 18 The inspection report concerning the documents claimed to be confidential indicates that one document was seized on 26 March 2015. The document in question was the agreement concluded between L., a company established by L.B., on the one hand, and Alcogroup, on the other. The Commission wished to verify whether L.B. had the status of an independent lawyer within the meaning of the case-law of the Court of Justice and the applicants argued that that agreement was itself protected by legal professional privilege. Fourth and final day of the second inspection (27 March 2015) 19 The method described in paragraph 17 above, which the Commission regarded as too cumbersome, was abandoned towards the end of the morning of the fourth day of inspection. 20 In the end the Commission was permitted a cursory examination of the documents marked as “legally privileged”, once the documents subsequent to 7 October 2014, the date on which the first inspection began, had been excluded. In the context of that adjustment, the Commission agreed not to examine, even summarily, a number of documents following explanations provided by the applicants’ lawyers. 21 In spite of the fact that the documents labelled as “legally privileged” had been removed from the list of documents to be examined, the applicants discovered a document they regarded as legally privileged among the list of documents “to be exported” drawn up by the investigators on 27 March 2015. 22 Following the applicants’ objection to the seizure of that document, the investigators agreed to delete it from the list of documents “to be exported”. Developments following the second inspection 23 By letter dated 16 April 2015, the Commission returned the agreement between L., established by L.B., and Alcogroup, in its sealed envelope, stating that the document was not relevant for the purposes of the investigation. 24 By letter of 21 April 2015 addressed to the Commission, the applicants claimed that the fact that a large number of documents which had been drawn up for their defence in the context of the first inspection had been examined in the context of the second inspection amounted to an infringement of the right to due process, the fundamental right to the inviolability of private premises and the principles of proper administration and the protection of legitimate expectations. Both the first and second investigations were vitiated by those infringements, such that the Commission ought to have confirmed “the immediate suspension of any investigative or other measures taken by the Commission’s staff in respect of [them] … in the context of the AT.40244 (AQUAVIT) and AT.40054 (OCTOPUS) proceedings”. 25 In its [letter] of 8 May 2015, the Commission rejected the request to suspend all measures of investigation in respect of the applicants in the two sets of proceedings concerned … By letter of 8 May 2015, the Commission disputed that there had been any infringement of the applicants’ rights in either of the two sets of proceedings, stating, in particular, that the fact that the documents had been marked did not necessarily amount to an examination of those documents and that the applicants’ claims that the team of inspectors had deliberately selected and analysed documents covered by professional secrecy were utterly unfounded. According to the Commission, there was therefore no reason to suspend the two ongoing investigations. 26 … 27 The second investigation which gave rise to the second inspection was closed on 7 April 2017.’
4 The relevant part of the letter of 8 May 2015 reads as follows: ‘As regards the actions taken by the Commission in the context of the T.40244 - Bioethanol file, I would remind you that in no way do you allege that the Commission is in possession of legally privileged documents. Your claims are limited to the fact that the inspectors “tagged” and could have read the documents covered by the privilege of confidentiality. Nonetheless, during the search, my staff explained the Commission inspectors’ data collection procedure and how the search software used by the Commission works to you, your client and a third party chosen by you (Mr Coene). Thus, it has been explained to you that the fact that a document (such as an attachment, for example) has been marked does not necessarily mean that the inspectors have read all of the documents related to that document (such as an email with many attachments that may [have been] covered by professional secrecy …). Consequently, your claims that the team of inspectors deliberately selected and analysed the documents covered by professional secrecy are utterly unfounded.’
5 By their action, the appellants asked the General Court to set aside the second inspection decision and the letter of 8 May 2015. In support of that action, the appellants raised a single plea divided in two parts.
6 The first part was based on an alleged infringement of the appellants’ right to a fair trial, protected by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) and, in particular, the rights of the defence, the principles of proper administration and proportionality and the duty to conduct an impartial investigation.
7 The second part was based on the right to the inviolability of private premises, provided for in Article 7 of the Charter and Article 8 of the ECHR.
8 The General Court held that that action was inadmissible.
9 As a first step, the General Court, in paragraphs 57 to 65 of the judgment under appeal, rejected both of the appellants’ arguments seeking to establish that the action was admissible as regards the second inspection decision.
10 For that purpose, the General Court, noted, first, in paragraphs 61 to 63 of the judgment under appeal, that in accordance with the case-law, the lawfulness of a measure must be assessed in the light of the law and facts at the time of its adoption and that therefore, in the present case, the objections raised in respect of the conduct of the inspection ordered by the second inspection decision are irrelevant to the request for annulment of that decision, which the General Court stated is also confirmed by the judgment of 18 June 2015, Deutsche Bahn and Others v Commission (C‑583/13 P, EU:C:2015:404). According to the General Court, it follows from that judgment that the irregular conduct of an inspection may call into question the validity solely of subsequent inspection decisions taken on the basis of information gathered unlawfully during the preceding inspection.
11 Secondly, the General Court rejected the appellants’ claim seeking annulment of the second inspection decision for failure to provide for precautionary measures in order to prevent the Commission from examining documents drawn up by the appellants for their defence in the context of the first investigation (‘the precautionary measures’). The appellants claim that such measures were necessary due to the risk that the investigators would discover, in the context of the second inspection, defence documents linked to the first investigation, the subject matter of which is closely linked to that of the second investigation. In that regard, in paragraph 64 of the judgment under appeal, the General Court observed that the infringements of the rights of the defence alleged by the appellants arose not directly from the absence of precautionary measures, but from the conduct of the inspection, which is irrelevant to the request for annulment of the second inspection decision. In any case, according to the General Court, the Commission is subject to limits during any inspection, such that respect for the rights claimed by the appellants must be ensured under all circumstances, without there being a need to adopt precautionary measures for that purpose. The General Court added that the appellants had failed to identify any actual rule establishing a legal obligation for the Commission to include specific precautionary measures in an inspection decision concerning the protection of documents covered by legal professional privilege in relation to another investigation. The General Court concluded, in paragraph 65 of the judgment under appeal, that the second inspection decision had not produced the legal effects that the appellants claimed in their action and that, consequently, the request with respect to that decision was inadmissible.
12 As a second step, the General Court examined the admissibility of the action in so far as it sought annulment of the letter of 8 May 2015.
13 For that purpose, the General Court, first of all, stated, in paragraphs 79 to 82 of the judgment under appeal, that that letter had to be interpreted as a refusal to definitively discontinue the measures of investigation in respect of the appellants and that, as such, that letter was a preliminary measure. Relying, inter alia, on the judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264), the General Court therefore concluded that the action was inadmissible in so far as it related to the refusal to suspend ongoing investigations referred to in that letter.
14 Next, the General Court rejected the appellants’ submission that the letter of 8 May 2015 was open to challenge on the ground that it amounted to a formal decision putting an end to the distinct special procedure concerning the protection of legally privileged documents, which consequently modified their legal situation in an immediate and irreversible manner. In that regard, the General Court, in paragraphs 87 to 89 of the judgment under appeal, found that that letter did not amount to a formal, or even tacit decision, to reject a claim of confidentiality, given that, in that letter, the Commission had not taken a decision as to whether or not the documents in question were covered by professional secrecy. The General Court stated that at the most, the letter of 8 May 2015 confirmed to the appellants that the documents had not been read by the Commission and that, accordingly, there had been no infringement of EU law. The General Court, furthermore, noted that the Commission had not actually seized those documents and had not added them to its file, with the exception of one single document which, although it had physically been seized and sealed, was subsequently returned to the appellants.
15 Finally, the General Court, in paragraphs 91 and 92 of the judgment under appeal, noted that, first, in principle, judicial review of the conditions in which an inspection has been conducted falls within the scope of an action which may, in an appropriate case, be brought for the annulment of the final decision adopted by the Commission pursuant to Article 101(1) TFEU. That would ensure, furthermore, that an effective legal remedy is available with respect to measures of inspection taken by competition authorities, as required by the European Court of Human Rights. Secondly, in a situation such as that at issue, given that the second investigation has been closed, and without prejudice to the possibility of bringing, if appropriate, an action for the annulment of a final decision adopted in the context of the first investigation, had the appellants regarded the acts whereby the Commission examined the confidential documents as unlawful and as resulting in harm such as to give rise to the liability of the European Union, the General Court stated that it was open to them to bring an action for non-contractual liability. According to the General Court, that possibility would also exist where the inspection does not give rise to any final decision that could be the subject of an action for annulment. Such an action for damages would not come within the system of review of the legality of EU acts which are binding on, and capable of affecting the interests of the party bringing the action, but could be brought where a party suffered harm on account of the unlawful conduct of an institution.
16 By their appeal, the appellants ask the Court to set aside the judgment under appeal, declare their action for annulment to be admissible, refer the case back to the General Court for a decision on the merits and order the Commission to pay the costs.
17 The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.
18 In accordance with Article 62 of the Rules of Procedure of the Court, the parties were invited, on 21 January 2019, to submit their observations as to whether the appellants still have a legal interest in the context of the appeal. In particular, they were asked to answer the question of what advantage they would gain if the judgment under appeal were set aside, given that the Commission had closed the second investigation on 7 April 2017.
19 The parties addressed that question in documents lodged at the Court Registry on 20 February 2019.
20 In response to the Court’s question to the parties, the appellants submitted that annulment of the judgment under appeal, possibly together with the second inspection decision and the letter of 8 May 2015, would be likely to result in all proceedings in the first investigation being discontinued, which would render the adoption of any measures of investigation or measures of inquiry by the Commission in both the first and the second investigations unlawful and allow the appellants to claim compensation for the harm suffered.
21 First, the appellants claim that the infringement of the rights of the defence consisting in the Commission’s examination of documents concerning the first investigation, which was rendered possible by the absence of precautionary measures in the second inspection decision, made it impossible in practice to prepare the appellants’ defence in that investigation. The appellants add that if the second inspection decision were found to be unlawful and set aside for having enabled the Commission to examine those documents, then that should result in the letter of 8 May 2015 being annulled, since, as the first investigation could no longer be conducted in an impartial manner, the Commission ought to have definitively discontinued that investigation. Furthermore, by refusing, in the letter of 8 May 2015, to acknowledge that the defence’s documents drawn up in the context of the first investigation were confidential, the Commission deprived the appellants of the right to a full defence in the context of that investigation. Secondly, the appellants submit that administrative closure of the second investigation does not prevent that investigation from being reopened.
22 The Commission, on the other hand, contends that owing to the administrative closure of the second investigation, the appeal has become devoid of purpose in so far as it relates to the part of the judgment under appeal concerning that investigation.
23 More particularly, the Commission submits that that closure enabled the appellants to obtain the outcome that they had sought through their action, in that that action had sought annulment of the second inspection decision and of the letter of 8 May 2015, at least as regards the Commission’s refusal to discontinue the second investigation. The Commission states that even though that investigation has only been the subject of an administrative closure, as no formal proceedings have been opened, that closure is quasi-definitive in nature. The Commission specifies, in that regard, that there is no possibility that the investigation will be reopened unless new and significant developments come to its attention. Furthermore, any such reopening would be subject to certain conditions, particularly as regards the reasons, and would probably give rise to a new investigation, in which the Commission would be prevented from using the documents examined during the second investigation that has been closed.
24 It follows from the Court’s settled case-law that an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must, like the interest in bringing proceedings, continue until the final decision, failing which there will be no need to adjudicate; that presupposes that the action must be capable, if successful, of procuring an advantage for the party bringing it (judgment of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraph 50 and the case-law cited).
25 In the present case, as the Commission itself acknowledges, the administrative closure of the second investigation, which occurred in the course of the proceedings before the General Court, is not final, since that investigation may be reopened if new and significant developments come to the attention of the Commission.
26 The mere legal possibility of reopening that investigation is sufficient to establish the appellants’ legal interest. The annulment of the judgment under appeal, and the annulment by the General Court of the second inspection decision and the letter of 8 May 2015 that might ensue would, at least, result in the Commission’s allegedly unlawful measures of investigation being deprived of any legal basis in the context of the second investigation and, therefore, oblige the Commission, if appropriate, to open a new investigation in the context of which it would be prevented from using the allegedly confidential documents examined during the previous investigation (see, to that effect, judgments of 22 October 2002, Roquette Frères, C‑94/00, EU:C:2002:603, paragraph 49, and of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 45).
27 Consequently, the appellants have retained a legal interest against the judgment under appeal and their appeal is admissible.
28 By their first ground of appeal, the appellants claim that the General Court made a series of errors in law and infringed the obligation to state reasons in the assessment of the admissibility of the action brought before it. This ground of appeal consists of two parts.
29 The first part of the first ground of appeal, in support of which the appellants rely on four arguments, relates to the General Court’s assessment of the admissibility of the action, in so far as the action sought annulment of the second inspection decision.
30 In their first argument, the appellants begin with the premiss that had adequate reasons been given in respect of the second inspection decision, that is to say had it provided for precautionary measures, the inspectors would not have regarded the decision as permitting them to examine documents that the appellants regarded as confidential.
31 In that regard, the appellants submit, first, that the General Court failed in its obligation to state reasons, in that it did not address the arguments that the failure in the second inspection decision to provide for precautionary measures also amounted to an infringement of the obligation to state reasons under Article 20(4) of Regulation No 1/2003, Article 47 of the Charter and Article 6 of the ECHR. Secondly, in paragraph 64 of the judgment under appeal, the General Court distorted the appellants’ request by stating that they had failed to cite any actual rule establishing the alleged obligation to include precautionary measures in the second inspection decision, whereas they had cited those provisions for that purpose. Thirdly, the General Court erred in stating that the appellants had relied on a first argument that the unlawful conduct of an inspection is such as to call into question the validity of the decision on the basis of which such an inspection was carried out. The appellants submit that, in actual fact, they made reference to the details of execution of the second inspection decision merely for the sake of completeness and in order to shed light on the examination of the lawfulness of the decision itself, within the meaning of the judgment of 18 June 2015, Deutsche Bahn and Others v Commission (C‑583/13 P, EU:C:2015:404).
32 By their second argument, the appellants submit that, by stating, in paragraph 64 of the judgment under appeal that the alleged infringements of the rights of the defence arose not directly from the absence of precautionary measures, but from the conduct of the inspection and that in any event, the Commission is subject to limits during any inspection, the General Court erred by assessing the substance of the action in the context of the examination of the admissibility of the action.
33 By their third argument, the appellants submit that the General Court erred in law in finding, in paragraphs 62, 64 and 65 of the judgment under appeal that the failure to state reasons, consisting in the absence of precautionary measures in the second inspection decision, was irrelevant to the request for annulment, that the infringements claimed did not arise directly from the absence thereof and that the second inspection decision did not produce the legal effects that the appellants had claimed.
34 According to the appellants, the first and second inspections were in fact closely connected by their subject matter, such that, when adopting the second inspection decision, the Commission was confronted with a heightened objective risk of infringement of the rights of the defence in the conduct of the inspection. Under those circumstances, the appellants submit that the Commission ought to have taken account of that risk, in particular, by providing for precautionary measures in order to place limits on the powers conferred on inspectors. Consequently, the appellants claim that the absence of such measures resulted in the alleged irregularities, committed by the inspectors.
35 The appellants further criticise the General Court for failing in its obligation to state reasons, first, in not putting forward any ground capable of demonstrating that there was no direct causal link between the failure to state reasons and the infringement of the rights of the defence and, secondly, for failing to address their argument based on a link between the subject matter of the two inspections, which justified the need for the Commission to state specific reasons.
36 In their fourth argument, the appellants submit that the General Court, in paragraph 64 of the judgment under appeal, erred in law by stating that the rights of the defence had been guaranteed, in any case, by the limits imposed on the Commission during any inspection. The appellants submit that those limits did not in fact dispense the Commission from stating reasons for its decisions. Furthermore, by merely making abstract reference to those limits, the General Court erred in failing to scrutinise whether the Commission had respected the rights of the defence.
37 The Commission contests that line of argument.
38 By the first part of their first ground of appeal and the four arguments relied on in support thereof, which should be examined together, the appellants argue, in essence, that the General Court, by regarding the plea based on a failure to state reasons in respect of the second inspection decision as inadmissible, made a number of errors in law and failed both in its obligation to state reasons and to uphold the rights of the defence, in that that decision should have included precautionary measures.
39 In particular, the appellants claim that the General Court, first, failed to address their plea of failure to state reasons in respect of the second inspection decision in that that decision did not provide for precautionary measures.
40 It should be noted, in that regard, that that line of argument stems from confusion between the examination that the court at first instance is required to conduct in the context of its assessment of whether the action for annulment is admissible, on the one hand, and the examination of the merits of the action, on the other.
41 The General Court limited its examination of the action to the appellants’ arguments seeking to demonstrate that the action was admissible. In that examination, the General Court verified, in particular, whether the arguments on which the action was founded were such as to call into question the lawfulness of the contested acts.
42 Contrary to what the appellants claim, the General Court was therefore correct to refrain from examining the merits of the arguments that the absence of precautionary measures in the second inspection decision amounted to an infringement of Article 20(4) of Regulation No 1/2003, Article 47 of the Charter and Article 6 of the ECHR.
43 Next, as regards the appellants’ argument that the General Court erred in its assessment of the merits in stating, in paragraph 64 of the judgment under appeal, that the alleged infringements of the rights of the defence arose not directly from the absence of precautionary measures, but from the conduct of the inspection, that argument is based on a misreading of that paragraph.
44 In that paragraph, the General Court did not examine the merits of the arguments seeking to establish such infringements, but merely observed, in the context of the assessment of the admissibility of the action, that in any case, there was no causal link between those infringements, even if they were established, and the lawfulness of the second inspection decision.
45 As the General Court rightly noted in paragraph 61 of the judgment under appeal, the lawfulness of an act of the European Union must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 63 and the case-law cited) such that acts subsequent to the adoption of a decision cannot affect the validity of that decision (judgments of 8 November 1983, IAZ International Belgium and Others v Commission, 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82, EU:C:1983:310, paragraph 16, and of 17 October 1989, Dow Benelux v Commission, 85/87, EU:C:1989:379, paragraph 49; and the order of President of the Court of 27 September 2004, Commission v Akzo and Akcros, C‑7/04 P(R), EU:C:2004:566, paragraph 46).
46 Consequently, given that the infringements claimed in the present case could only possibly have been committed by the Commission’s inspectors during the second inspection and therefore subsequently to the adoption of the second inspection decision, they could not, in any case, have affected the lawfulness of that decision.
47 Furthermore, the appellants submit that, in the present case, precautionary measures should have been provided for in the light of the heightened risk that during the second inspection, the inspectors would examine confidential documents concerning the first inspection, owing to the similar subject matter of the investigations in the context of which those inspections were conducted.
48 It must be noted that that argument is based, in essence, upon the premiss that a second inspection decision should provide for particular precautionary measures as regards the protection of legal professional privilege, with a view to the conduct of the inspection, where that inspection has been preceded by a first inspection and both of those inspections were undertaken in the context of investigations with similar subject matter. Under those circumstances, the appellants submit that solely such precautionary measures would have ensured that the Commission inspectors would not have regarded that decision as permitting them to examine documents covered by legal professional privilege.
49 That premiss is manifestly false.
50 The privileged nature of correspondence between lawyers and their clients is among the rights of the defence that must be respected at the preliminary-inquiry stage (see, to that effect, judgments of 18 May 1982, AM & S Europe v Commission, 155/79, EU:C:1982:157, paragraphs 18 to 23; of 21 September 1989, Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, paragraph 16; and 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraphs 40 and 41). Consequently, the Commission and its inspectors, are in principle, required to respect that right, irrespective of the scope of the mandate conferred on them by the inspection decision.
51 Therefore, contrary to what the appellants claim, the inspectors could not, in any case, have inferred from the absence, in the second inspection decision, of any particular precautionary measures in relation to the allegedly confidential documents drawn up following the first inspection that they were authorised to breach the confidentiality of those documents.
52 Finally, as regards the arguments directed against the considerations set out in paragraph 64 of the judgment under appeal, which stated that, in any case, first, the Commission was subject to limits during any inspection, such that respect for the rights claimed by the appellants must be ensured under all circumstances and, second, the appellants had not identified any actual rule establishing that the Commission was under a legal obligation to include specific precautionary measures in the second inspection decision, it is sufficient to note that those considerations were included merely for the sake of completeness and that, consequently, even if those arguments were well founded, they cannot result in the annulment of the judgment under appeal, and that, accordingly, they must be dismissed as ineffective.
53 In accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of the judgment, any defects that could vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a ground of appeal in which such defects are relied on is ineffective and must be dismissed (see, in particular, judgments of 29 April 2004, Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68, and order of 15 May 2019, CJ v ECDC, C‑170/18 P, not published, EU:C:2019:410, paragraph 56).
54 Having regard to the foregoing considerations, the General Court was correct in finding that the appellants’ arguments were not capable of calling into question the lawfulness of the second inspection decision and, in paragraph 65 of the judgment under appeal, finding that the action was inadmissible with respect to the annulment of that decision.
55 The first part of the first ground of appeal must therefore be rejected.
56 The second part of the first ground of appeal, in support of which two arguments are relied on, concerns the General Court’s assessment of the admissibility of the action in so far as it sought annulment of the letter of 8 May 2015.
57 By their first argument, the appellants criticise the General Court for distorting the wording of that letter. Whereas, according to paragraph 80 of the judgment under appeal, the letter is merely a preparatory act with a view to the adoption of the Commission’s final decision closing the investigation, the appellants submit that that letter actually contained the Commission’s final position as to the non-confidential nature of the documents in question. Therefore, that letter amounted to a decision producing binding legal effects with regard to the appellants. Furthermore, the appellants claim that in paragraph 87 of that judgment, the General Court distorted the facts by stating that, in that letter, the Commission ‘[did] not decide on whether or not the documents at issue [were] covered by professional secrecy [and that] at the most, the letter of 8 May 2015 confirm[ed] to the appellants that the documents [had] not be read by the Commission’. The appellants submit that it is, in fact, clear from that letter that the Commission does not dispute that the documents marked were examined.
58 In addition, the appellants submit that the letter of 8 May 2015 caused them irreparable harm. First, the examination of the documents in question by the Commission certainly could have influenced the first investigation in some way and secondly, aggravation of that harm could have been averted only by discontinuing that investigation, given that, in the very specific context of the case at hand, it is precisely the infringement of the rights of the defence in the course of the second inspection that they claim to be such as to undermine the possibility for the appellants to defend themselves effectively, to which they were entitled.
59 By their second argument, the appellants submit that in paragraphs 86 to 89 of the judgment under appeal, the General Court erred in drawing a distinction between the case at hand and that giving rise to its judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission (T‑125/03 and T‑253/03, EU:T:2007:287), and in finding that in the absence of any actual act of seizure of the allegedly confidential documents and the addition of those documents to the file, the Commission had not adopted a tacit decision to reject the claim of legal professional privilege.
60 The appellants submit that, first of all, the distinction based on whether or not the documents were seized is artificial and has the effect of allowing the Commission, by not copying the defence documents that the inspectors had in fact examined, to prevent its decision from being challenged. Next, in paragraph 87 of the judgment under appeal, the appellants claim that the General Court distorted the facts by stating that the letter of 8 May 2015 confirmed that the appellants’ defence documents had not been read by the inspectors. The appellants claim that in its defence before the General Court, the Commission admitted that the appellants’ defence documents that it regarded as not covered by professional secrecy may have been read by the inspectors and that those inspectors may have briefly examined the potentially privileged documents. Finally, the appellants claim that that letter amounted to a tacit decision putting an end to a distinct special procedure concerning the protection of the rights of the defence. In that regard, the question whether the Commission also copied and/or incorporated the documents into its file is irrelevant. In the present case, the tacit decision of the Commission, in any case, took the form of the inclusion of the defence documents in the search pool, the examination of those documents and the selection of certain documents as relevant for the investigation, even though they were subsequently removed from the list of the documents for export.
61 The Commission contests that line of argument.
62 By the second part of the first ground of appeal, the appellants submit, in essence, that the General Court distorted the letter of 8 May 2015 and erred in law, in regarding that letter as a preparatory act and not a final decision of the Commission rejecting a claim of legal professional privilege.
63 First of all, it must be borne in mind that, in accordance with the settled case-law of the Court of Justice, where the General Court has determined or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU solely to review their legal characterisation and the legal conclusions which were drawn from them. The assessment of the facts is not therefore, other than in cases where the evidence produced before the General Court has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, in particular, judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 75 and the case-law cited).
64 Although such a distortion may consist in an interpretation of a document that is at odds with its content (see, to that effect, judgment of 11 July 2013, France v Commission, C‑601/11 P, EU:C:2013:465, paragraph 106), that must be manifestly clear from the file and the General Court must have manifestly exceeded the limits of a reasonable assessment of the evidence. In that regard, it is not sufficient to show that a document could be interpreted in a different way from that adopted by the General Court (judgment of 29 October 2015, Commission v ANKO, C‑78/14 P, EU:C:2015:732, paragraph 55 and the case-law cited).
65 In the present case, it is apparent from the letter of 8 May 2015 that the Commission was of the view that ‘the fact that a document (such as an attachment, for example) is marked does not necessarily mean that the inspectors have read all of the documents related to that document’, including documents ‘that may be covered by professional secrecy’. Therefore, even though the Commission did not expressly rule out that its inspectors could have read the allegedly confidential documents, it still did not admit, contrary to what the appellants allege, that the inspectors had in fact read them, even in a cursory manner. However, the Commission did expressly rule out that marking a document necessarily amounted to reading it.
66 Therefore, it must be found, that by concluding, in paragraph 87 of the judgment under appeal, that ‘in the letter of 8 May 2015, the Commission did not decide on whether or not the documents at issue [were] covered by professional secrecy’ and that, at the most, that letter ‘confirmed to the appellants that the documents had not been read by the Commission’, the General Court did not interpret that letter in a way that was manifestly at odds with its contents, and therefore, did not distort that content.
67 It follows that the General Court was correct, in paragraph 90 of the judgment under appeal, to draw a distinction between the present case and that giving rise to the judgment of the General Court of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission (T‑125/03 and T‑253/03, EU:T:2007:287), in which the Commission took a tacit decision as regards the confidentiality of documents, in the form of the seizure of those documents, by formally rejecting a claim of legal professional privilege in respect of those documents.
68 In the present case, since the General Court was correct in finding that the letter of 8 May 2015 did not take a position as to whether the documents at issue were confidential, and did not confirm that the Commission inspectors had read the allegedly privileged documents during the second inspection, that letter could not amount to a formal decision to reject a claim of privilege or, even less so, a decision confirming a tacit decision to reject such a request.
69 Accordingly, the General Court did not err in law in any way in finding, in paragraphs 80 and 81 of the judgment under appeal, that the letter of 8 May 2015 should be interpreted as a refusal to definitively discontinue the measures of investigation with respect to the appellants, which were preliminary acts.
70 Under those circumstances, the second part of the first ground of appeal and, accordingly, the first ground of appeal must be dismissed in its entirety.
71 In their second ground of appeal, the appellants criticise the General Court for having, in paragraphs 91 and 92 of the judgment under appeal, limited the judicial review of the Commission’s allegedly unlawful conduct in the course of an inspection solely to actions for the annulment of any final decision subsequently adopted by that institution and to the non-contractual liability of the European Union. In so doing, the appellants allege that the General Court infringed the appellants’ right to effective judicial protection guaranteed by Article 6 of the ECHR and by Article 47 of the Charter, as those two remedies are not capable of ensuring adequate judicial protection for the appellants.
72 First, the appellants submit, referring to the judgment of the European Court of Human Rights of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808), that as regards the action for annulment, if the Commission does not adopt a final decision, they will be left without any remedy against such conduct, despite the fact that irregularities committed at one stage of the procedure cannot always be remedied at a later stage of that procedure. However, if a final decision were adopted, an action for annulment of that decision would not allow the irreversible consequences of the use of confidential information in the documents examined by the Commission inspectors to be averted. Secondly, the action for non-contractual liability, which would not be capable of retroactively removing the legal basis for the allegedly unlawful conduct of the Commission, would also be ineffective for the purposes of ensuring the protection of the appellants’ rights.
73 According to the appellants, that conclusion must be reached, a fortiori, given that, in accordance with Article 52(4) and Article 53 of the Charter, the judicial protection afforded by EU law should be at least equivalent to that guaranteed under national constitutional traditions. The appellants submit that the Constitutional Court (Belgium), relying on the same case-law from the European Court of Human Rights, held that judicial review of inspection measures must allow, in the event of a finding of irregularity, either the operation to be prevented or, if it has already taken place, those concerned to be offered ‘appropriate redress’.
74 The Commission contests that line of argument.
75 The second ground of appeal alleges infringement of the appellants’ right to effective judicial protection, as guaranteed by Article 47 of the Charter and Article 6 of the ECHR. The appellants criticise the General Court for having limited the judicial review of the Commission’s allegedly unlawful conduct, during an inspection, to actions for the non-contractual liability of the European Union and the annulment of any final decision subsequently adopted by the Commission to the effect that the rules of EU competition law have been infringed.
76 In the present case, first, the considerations set out in paragraphs 91 and 92 of the judgment under appeal, contested by the appellants, begin with the words ‘It must be added that’. Second, it is in paragraphs 82 to 90 of that judgment that the General Court concluded its analysis of the arguments raised by the appellants, as reproduced, respectively, in paragraphs 68 and 69 and paragraph 83 of that judgment.
77 It follows that paragraphs 91 and 92 of the judgment under appeal set out grounds were included merely for the sake of completeness.
78 Therefore, having regard to the case-law set out in paragraph 53 of the present judgment, the second ground must be dismissed as ineffective.
79 In the light of the above considerations, the appeal must be dismissed in its entirety.
80 In accordance with the Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of those Rules, which applies to the proceedings on appeal by virtue of Article 184(1) of those Rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
81 Since the appellants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission. Since they brought their appeal jointly, they must bear the costs jointly and severally.