1 By their appeal, Nexans France SAS and Nexans SA ask the Court to set aside the judgment of the General Court of the European Union of 12 July 2018, Nexans France and Nexans v Commission (T‑449/14, ‘the judgment under appeal’, EU:T:2018:456), by which the General Court dismissed their action seeking, first, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 - Power Cables) (‘the decision at issue’), in so far as it concerns them, and, second, a reduction of the amount of the fines imposed on them in the decision at issue.
2 Article 20 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), that article being headed ‘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. 2. The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered: (a) to enter any premises, land and means of transport of undertakings and associations of undertakings; (b) to examine the books and other records related to the business, irrespective of the medium on which they are stored; (c) to take or obtain in any form copies of or extracts from such books or records; (d) to seal any business premises and books or records for the period and to the extent necessary for the inspection; (e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers. … 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. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted. …’
3 Article 21 of that regulation, headed ‘Inspection of other premises’, provides: ‘1. If a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection, which may be relevant to prove a serious violation of Article [101] or Article [102] [TFEU], are being kept in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned, the Commission can by decision order an inspection to be conducted in such other premises, land and means of transport. … 4. The officials and other accompanying persons authorised by the Commission to conduct an inspection ordered in accordance with paragraph 1 of this Article shall have the powers set out in Article 20(2)(a), (b) and (c). …’
4 Under Article 23(2) and (3) of that regulation: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101] or [102 TFEU] … … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
5 Article 31 of that regulation provides: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
6 The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’) state, in points 2 and 4 thereof, that, in relation to setting fines, ‘the Commission must have regard both to the gravity and to the duration of the infringement’ and that ‘fines should have a sufficiently deterrent effect’.
7 It is clear from points 9 to 11 of those guidelines, subject always to point 37 of those guidelines, that the method to be used by the Commission for setting fines comprises two steps, that is to say, first, a basic amount is determined and, second, that amount may be adjusted upwards or downwards. In determining the basic amount of the fine, the Commission is, first of all, to establish, in accordance with points 13 to 18 of those guidelines, the value of sales to be taken into account. Under point 19 of those guidelines, the basic amount of the fine is related to a proportion of the value of those sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
8 Under point 21 of the 2006 Guidelines: ‘As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.’
9 Point 22 of those guidelines states: ‘In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.’
10 The background to the dispute, which is set out in paragraphs 1 to 20 and 42 to 47 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as set out below.
11 The appellants, Nexans France and its parent company, Nexans, are French undertakings active in the sector concerning the production and supply of submarine and underground power cables.
12 By letter of 17 October 2008, ABB AB, a company established in Sweden, provided the Commission, in connection with an application for immunity within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), with a number of statements and documents concerning restrictive commercial practices in that sector.
13 The Commission subsequently carried out an investigation.
14 On Wednesday 28 January 2009 the Commission inspectors, accompanied by representatives of the French competition authority, visited the premises of Nexans France in Clichy (France) in order to carry out an inspection pursuant to Article 20(4) of Regulation No 1/2003 (‘the inspection in question’), on the basis of a decision of 9 January 2009 ordering Nexans and all the undertakings controlled by Nexans to submit to such an inspection (‘the inspection decision’). The second paragraph of Article 1 of that decision states, ‘the inspection [in question] can take place in all premises controlled by the company, and in particular at the offices situated at the following address: 4-10 Rue Mozart, 92110 Clichy, France’.
15 After making the appellants aware of the inspection decision, the Commission inspectors (‘the inspectors’) expressed their wish to examine the documents and computers of certain Nexans France employees, namely Mr B., Mr J. and Mr R. Having been informed that Mr J. was absent, having taken his computer on a trip, and that he would not return until Friday 30 January 2009, the inspectors made copy-images of the hard drives of the computers of Mr B., Mr R. and Mr D., another employee of Nexans France. In order to be able to conduct a search using keywords in the data contained on those computers, they used computer investigation software which processed that data during the night of 28 to 29 January 2009.
16 On the second day of the inspection in question, namely Thursday 29 January 2009, the inspectors examined the copy-images of the hard drives of the computers of Mr B., Mr D. and Mr R.
17 On the third day of that inspection, Friday 30 January 2009, the inspectors were able to examine the laptop of Mr J., who had returned to the office. Use of the computer investigation software enabled them to recover a number of files, documents and emails which had been deleted from the hard drive of that computer and to determine that those documents were relevant to the investigation. The inspectors decided to make a copy-image of that hard drive. However, noting that they no longer had sufficient time to make such a copy, they decided to make a copy of selected data and to place it on data recording devices (‘DRDs’) which were put in sealed envelopes and taken back to the Commission’s offices in Brussels (Belgium). That process involved two sets of emails found on Mr J.’s laptop and a set of emails found on Mr R.’s computer. Mr J.’s computer and a DRD found in his office containing password-protected documents were placed in a cupboard, which was sealed by the inspectors.
18 The inspectors returned to the premises of Nexans France on Tuesday 3 February 2009. They opened the sealed cupboard containing the DRD found in Mr J.’s office and his computer. They inspected the DRD on the premises, printed and retained two documents taken from the DRD, and returned the DRD to the appellants’ representatives. They then made three copy-images of the hard drive of Mr J.’s computer, each recorded onto a separate DRD. The inspectors gave one of the three DRDs to the appellants’ representatives and placed the remaining two in sealed envelopes which they took back to Brussels, after taking formal note of the fact that the appellants disputed the legitimacy of that procedure. The inspectors stated that the sealed envelopes would be opened only at the Commission’s premises in the presence of the appellants’ representatives.
19 The sealed envelopes containing the DRDs removed by the inspectors were opened in the Commission’s offices in Brussels on 2 March 2009 in the presence of the appellants’ lawyers. The documents recorded on those DRDs were examined and the inspectors printed out those which they considered relevant for the purposes of the investigation. A second paper copy and a list of those documents were given to the appellants’ lawyers. The examination of all the data recorded on the DRDs in question lasted eight working days and was completed on 11 March 2009. The office in which the documents and the DRDs were examined was sealed at the end of each worked day, in the presence of the appellants’ lawyers, and opened again the following day, also in their presence. At the end of that process, the hard drives of the computers on which the Commission’s inspectors had worked were wiped.
20 By application lodged at the Registry of the General Court on 7 April 2009 and registered as Case T‑135/09, the appellants brought an action seeking, inter alia, the annulment of the inspection decision and a declaration that the Commission’s decision to seize copies of certain computer files and of the hard drive of Mr J.’s computer to examine them subsequently at its offices in Brussels was unlawful.
21 By judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), the General Court annulled in part the inspection decision, in so far as it concerned electric cables other than high voltage underwater and underground electric cables and the material associated with those cables, and dismissed the action as to the remainder. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed the appellants’ appeal against that judgment of the General Court.
22 In Article 1 of the decision at issue, the Commission found that the appellants and 24 other undertakings had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) in the (extra) high voltage underground and/or submarine power cables sector (‘the infringement in question’).
23 In the decision at issue, the Commission found that the cartel consisted of two main configurations, which formed a composite whole, namely: - a configuration which included the European undertakings, which were generally referred to as the ‘R members’, the Japanese undertakings, referred to as ‘A members’, and the South Korean undertakings, referred to as ‘K members’, and which made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers (‘the A/R configuration’). That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States, - a configuration which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home’ territory or allocated to the European producers (‘the European configuration’).
24 According to the decision at issue, Nexans France participated in the cartel from 13 November 2000 to 28 January 2009. Nexans was held liable for the infringement in question as the parent company of Nexans France for the period from 12 June 2001 to 28 January 2009.
25 In calculating the amount of the fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the 2006 Guidelines.
26 In the first place, as regards the basic amount of those fines, the Commission established the value of sales to be taken into account. It then set the proportion of the value of sales which would reflect the gravity of the infringement in question. In that regard, the Commission considered that that infringement, by its very nature, was among the most harmful restrictions of competition, which justified a ‘gravity percentage’ of 15%. It also increased the gravity percentage by 2% for all addressees of the decision at issue on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all the territory of the European Economic Area (EEA).
27 In addition, the Commission considered that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had allocated power cable projects among themselves in the context of the European configuration. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings. The basic amount thus calculated came, in relation to Nexans France, to EUR 70670000.
28 In the second place, the Commission found neither aggravating circumstances nor mitigating circumstances that could affect the basic amounts of the fines as regards the appellants.
29 Under Article 2(c) and (d) of the decision at issue, the Commission imposed (i) a fine of EUR 4903000 on Nexans France in respect of the period from 13 November 2000 to 11 June 2001 and (ii) a fine of EUR 65767000 on Nexans France, jointly and severally with Nexans in respect of the period from 12 June 2001 to 28 January 2009.
30 By application lodged at the Registry of the General Court on 17 June 2014, the appellants brought an action seeking annulment of the decision at issue in so far as it concerned them, and seeking a reduction of the amount of the fines imposed on them.
31 In support of their claim for annulment of the decision at issue, the appellants raised two pleas in law before the General Court, claiming, first, infringement of (i) Article 20(2) to (4) of Regulation No 1/2003, (ii) the inspection decision, (iii) the rights of the defence and (iv) Article 7 of the Charter of Fundamental Rights of the European Union and, second, an error of assessment concerning the determination of the date on which Nexans France’s participation in the cartel began. In support of their claim for a reduction of the amount of the fines which had been imposed on them, in addition to relying on the Commission’s error regarding the duration of the infringement in question, which was contested in the second plea of the action, the appellants relied on a specific plea, alleging a manifest error of assessment and infringement of the obligation to state reasons and the principle of equal treatment in setting the gravity factor for the calculation of the fines.
32 By the judgment under appeal, the General Court dismissed the action in its entirety.
33 First, as regards the claim that there was no legal basis for the inspection measures taken by the Commission, the General Court considered that, contrary to the appellants’ submissions, it was not apparent from Article 20(2)(b) and (c) of Regulation No 1/2003 that the Commission’s power to take or obtain copies of or extracts from the books and records related to the business of an undertaking under inspection was limited to the books and records related to the business that it had already examined. Such an interpretation could moreover undermine the effectiveness of Article 20(2)(b) of that regulation, in so far as, in certain circumstances, examination of the books and records related to the business of the undertaking may necessitate the copying of such books or business records beforehand, or be simplified, as in the present case, by that copying. The General Court stated that given that the making of the copy-image of the hard drive of Mr J.’s computer and copies of sets of emails found on that computer and Mr R.’s computer was part of the process by which the inspectors operated the computer investigation software, the purpose of which was to search for information relevant to the investigation, it fell within the scope of the powers conferred on the Commission by Article 20(2)(b) and (c) of Regulation No 1/2003.
34 The General Court held that, contrary to the appellants’ claims, the inspectors did not place directly in the investigation file the documents contained in the copies of the sets of emails found on Mr R.’s computer and on Mr J.’s computer as well as on the copy-image of the hard drive of Mr J.’s computer without having examined beforehand whether they were relevant to the subject matter of the inspection.
35 Furthermore, the General Court held that Article 20(2)(b) of Regulation No 1/2003 does not provide that the examination of the books and records related to the business of undertakings under inspection must be carried out exclusively at their premises if, as in the present case, that inspection could not be completed within the timeframe initially envisaged. That provision merely requires the Commission to offer, when examining documents at its own premises, the same guarantees to undertakings under inspection as those required of the Commission when conducting an on-the-spot examination, as occurred in the present case.
36 Second, nor did the Commission infringe the scope of the inspection decision, since that decision did not rule out the possibility of the Commission continuing the inspection in question at its premises in Brussels, nor had the appellants claimed that the duration of that inspection was unreasonable.
37 Third, the General Court held that the Commission had not infringed the appellants’ rights of defence, Article 20(3) and (4) of Regulation No 1/2003 or Article 7 of the Charter of Fundamental Rights.
38 Fourth, the General Court found that the Commission had not erred in stating that 3 November 2000 marked the beginning of Nexans France’s participation in the infringement in question.
39 Fifth, the General Court held that the appellants’ arguments seeking a reduction of the amount of the fines imposed on them were not such as to justify a reduction of that amount. As regards, more particularly, the appellants’ argument that the distinction drawn by the Commission between, first, the European undertakings and, second, the Japanese undertakings as regards the proportion of the value of sales taken into account to reflect the gravity of the infringement is contrary to the principle of equal treatment, the General Court held that the Commission was entitled to take the view that the allocation of projects within the European cartel configuration by the European undertakings constituted an additional factor which warranted punishment by an additional percentage to reflect the gravity of the infringement.
40 The appellants claim that the Court should: - set aside the judgment under appeal; - refer the matter back to the General Court to decide on its action for annulment of the decision at issue in so far as it concerns them; - reduce the fines imposed on them by an amount that corresponds to a reduced gravity factor; and - order the Commission to pay the costs of the appeal proceedings and of the proceedings before the General Court.
41 The Commission contends that the Court should: - dismiss the appeal in its entirety as being inadmissible in part and in any event as being ineffective and/or entirely unfounded; and - order the appellants to pay the costs, including at first instance.
42 The oral part of the procedure was closed on 12 March 2020, following the delivery of the Advocate General’s Opinion.
43 By letter lodged at the Court Registry on 29 May 2020, the appellants requested that the oral part of the procedure be reopened. In support of that request, they rely on the fact that, by order adopted on 4 May 2020, the General Court rectified paragraph 156 of the English version of the judgment under appeal.
44 In the appellants’ view, that rectification constitutes a new fact which is of such a nature as to be a decisive factor for the Court’s decision regarding their fourth ground of appeal.
45 It must be recalled that the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court.
46 In the present case, however, it is clear that the rectification of paragraph 156 of the judgment under appeal is not determinative for the Court’s assessment of the appellants’ fourth ground of appeal.
47 Having regard to the above, after hearing the Advocate General, the Court considers that there is no need to order the oral part of the procedure to be reopened.
48 In support of their appeal, the appellants rely on five grounds of appeal. The first three grounds of appeal relate to the General Court’s rejection of their arguments regarding the conduct of the inspection in question and the last two concern the General Court’s decision on the calculation of the fine imposed on them in the decision at issue. More specifically, the fourth ground of appeal claims an error of law as to the conclusions that the General Court should have reached given the alleged lack of effects of the infringement in question. The fifth ground of appeal claims a manifest error of assessment and a failure to state reasons regarding the 2% increase in the gravity factor applied to the European cartel configuration.
49 By their first ground of appeal, the appellants submit that the judgment under appeal is vitiated by an error of law regarding the interpretation of Article 20(2)(b) and (c) of Regulation No 1/2003, in that it confirms that the Commission was entitled to make the copy-image of a hard drive and copies of sets of emails without carrying out a meaningful examination of those documents beforehand. That ground of appeal concerns paragraphs 53 to 56 and 97 of the judgment under appeal.
50 First, they argue that only books and records which have been examined beforehand by an inspector in accordance with Article 20(2)(b) of that regulation may be copied. There is nothing to prevent the Commission from confining itself to copying the documents and files which appear to it to be relevant to the investigation rather than making a copy of an entire hard drive.
51 Second, they claim that Article 20(2) of Regulation No 1/2003 provides for a particular sequence of actions for the various stages described in that provision. First of all, the Commission inspectors enter the premises of the undertaking concerned. Next, they examine the books and other records which appear to them to be relevant to the investigation. Finally, they may take copies of those documents. The examination conducted within that process is crucial, in that it enables the Commission’s inspectors at that stage to ascertain whether the documents may be of interest to the investigation. By mass copying the data without prior examination by an inspector, the appellants claim that the Commission might also copy documents covered by the principle of legal professional privilege.
52 Third, the appellants claim that it is clear from the case-law of the Court that the Commission’s powers of investigation must be interpreted narrowly, since they adversely affect the property rights of the undertaking which is under inspection.
53 The Commission maintains that the first ground of appeal is inadmissible, since, apart from one argument, it seeks to have the Court of Justice re-examine the arguments which the appellants put before the General Court. The appellants’ additional argument that the Commission’s approach in the present case might result in the Commission taking a copy of documents covered by the principle of legal professional privilege is, in the view of the Commission, inadmissible because it was not raised at first instance. In the alternative, the Commission submits that that ground of appeal is either ineffective, because it is based on an incomplete reading of the judgment under appeal, which takes no account of the General Court’s main findings in paragraphs 52, 58 and 59 of that judgment, or that it is unfounded.
54 As regards the admissibility of the first ground of appeal, it must be stated that, by that ground of appeal, the appellants are challenging the General Court’s interpretation of Article 20(2)(b) and (c) of Regulation No 1/2003. It is clear from the case-law of the Court that, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. If an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 15 and the case-law cited). It follows that the first ground of appeal is admissible.
55 As regards the appellants’ argument concerning the principle of legal professional privilege, it is clear from the case-law of the Court that an argument is admissible where it expands upon an argument raised previously in the original application and is closely connected with that previous argument (see, to that effect, judgment of 26 January 2017, Roca Sanitario v Commission, C‑636/13 P, EU:C:2017:56, paragraph 35 and the case-law cited). That is so in the present case, given that it is a consideration put forward by the appellants in support of their argument that the Commission can copy solely books and documents which it has already examined.
56 As regards the substance of the case, it must be stated at the outset that it is true that the appellants are not challenging the General Court’s findings in paragraphs 52, 58 and 59 of the judgment under appeal. Those findings are that, on the one hand, the making of a copy-image of a hard drive of a computer and a copy of data stored on a digital data carrier as part of the Commission’s use of computer investigation software constitutes, in essence, an intermediate step intended to enable the inspectors to search for documents relevant to the inspection. On the other hand, it is apparent from those findings that, in the present case, the Commission did not place directly in the investigation file the documents contained in the copies of sets of emails found on Mr R.’s computer and on Mr J.’s computer as well as in the copy-image of the hard drive of Mr J.’s computer without having checked beforehand whether they were relevant to the subject matter of the inspection in question. However, contrary to the Commission’s submissions, the fact that the appellants did not challenge those findings of the General Court does not mean that the first ground of appeal is ineffective. In fact, those findings are not sufficient in themselves to prove that the Commission had the power to make such copies.
57 It is therefore necessary to examine whether the General Court erred in law when it held that such a power follows from Article 20(2)(b) or (c) of Regulation No 1/2003.
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.
59 It follows that the General Court could not rely on Article 20(2)(c) of Regulation No 1/2003 in order to hold that the Commission was entitled to make copies of the sets of emails found on Mr R.’s computer and Mr J.’s computer as well as on the copy-image of the hard drive of Mr J.’s computer.
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.
61 It must be stated, in the first place, that by limiting itself to permitting the Commission to carry out such an examination, without giving more details of the power thus conferred on the Commission, the EU legislature granted that institution a certain discretion regarding its specific examination procedures.
62 The Commission may therefore, depending on the circumstances, decide to examine data contained on the digital data carrier of the undertaking under inspection not by reference to the original, but by reference to a copy of that data. Indeed, the Commission subjects the same data to examination, both where the original data is examined and where the copy of such data is examined. Accordingly, the appellants’ argument that Article 20(2)(b) of Regulation No 1/2003 does not expressly refer to the possibility of making such copies is irrelevant.
63 Thus, contrary to the appellants’ submissions, the Commission’s right to make copies of sets of emails and the copy-image of a computer hard drive, as an intermediate step in the examination of the data contained in those sets and on that medium, does not constitute an additional power granted to the Commission, but, as the General Court correctly stated in paragraph 56 of the judgment under appeal, falls within the power of examination which Article 20(2)(b) of Regulation No 1/2003 makes available to that institution.
64 In the second place, while it is true that it is settled case-law that the Commission’s powers of investigation concerning competition law are strictly circumscribed (see, to that effect, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 31 and the case-law cited), nonetheless that does not mean, as observed, in essence, by the Advocate General in points 61 and 62 of her Opinion, that the provisions conferring the powers of investigation on that institution must be interpreted narrowly, even though, from that point of view, it must be ensured that those powers do not infringe the rights of the undertakings concerned. Those rights are safeguarded where, as in the present case, the Commission copies the data, admittedly without a prior examination, but then assesses whether the data is relevant to the subject matter of the inspection in strict compliance with the rights of defence of the undertaking concerned, before those documents found to be relevant are placed in the file and the remainder of the copied data is deleted.
65 Consequently, the Commission’s right to make such copies affects neither the procedural safeguards laid down by Regulation No 1/2003 nor the other rights of the undertaking under inspection, provided that the Commission, after completing its examination, places on the file only documents which are relevant to the subject matter of the inspection. As the General Court observed, that was so in the present case.
66 In the third place, as is apparent from the General Court’s findings of fact in paragraph 52 of the judgment under appeal, the Commission uses computer investigation software which requires a preliminary stage, known as ‘indexation’, which generally takes a considerable amount of time. The same is true of the next step of that data processing process, in which the Commission examines that data, as the facts of the present case demonstrate. It is therefore in the interest not only of the Commission but also of the undertaking concerned that that institution relies, in conducting its examination, on a copy of that data, thereby enabling that undertaking to continue to use the original data and the media on which it is located as soon as that copy has been made and, consequently, to reduce the interference in that undertaking’s operations caused by the Commission’s inspection.
67 In those circumstances, the appellants’ arguments based on the wording of Article 20(2)(c) of Regulation No 1/2003 and on the general scheme of Article 20(2) of that regulation must be rejected.
68 The first ground of appeal must therefore be rejected as being unfounded.
69 By their second ground of appeal, which concerns paragraphs 60 to 64 of the judgment under appeal, the appellants claim that that judgment is vitiated by an error of law as regards the interpretation of Article 20(2) of Regulation No 1/2003, in that it confirms that the Commission was entitled to continue the inspection in question at its premises in Brussels. According to the appellants, it follows from a literal and contextual interpretation of that provision that it does not empower the Commission to conduct inspections at its own premises and that those inspections must be carried out at the premises of the undertaking or association of undertakings concerned.
70 First, the appellants argue that it is clear that Article 20(1) of Regulation No 1/2003 concerns inspections of ‘undertakings and associations of undertakings’. Article 20(2) of that regulation sets out the inspectors’ powers to conduct such inspections, including the right to enter any premises, land and means of transport ‘of undertakings and associations of undertakings’ in accordance with Article 20(2)(a) of that regulation. The other powers, namely examination of books and other records, making a copy of documents, sealing premises, books or records, and questioning company employees are, in the appellants’ opinion, all part of that inspection and are therefore to be exercised at the premises of the undertaking under inspection.
71 Second, the appellants claim that if Article 20(2)(b) of Regulation No 1/2003 were to be interpreted as meaning that there were no such limitation on the location of the ‘examination’ pursuant to that provision, the Commission would also have the power, under Article 20(2)(e) of that regulation, to question the representatives of the undertaking concerned elsewhere than at the company’s premises or, under Article 20(2)(b) or (c) of that regulation, to examine and copy records held by third parties, such as providers of remote data storage, without entering the undertaking’s premises at all. The appellants argue that it is however clear that, in adopting Regulation No 1/2003, the EU legislature did not intend to confer on the Commission such extensive powers of investigation. In the appellants’ view, a narrow interpretation of that type is borne out by Article 21 of that regulation, which provides that a specific decision is required for the inspection of other premises. If Article 20 of Regulation No 1/2003 allowed for the examination of books and other records to be carried out outside the premises of the undertaking, Article 21(4) of that regulation would, in their view, serve no purpose.
72 Third, the appellants claim that it is not possible to take the view that Article 20(2)(b) of Regulation No 1/2003 implicitly permits the Commission to examine materials outside the premises of the undertaking concerned, since such a power is not indispensable for the effective exercise of the Commission’s functions under Regulation No 1/2003 and that, in the absence of such a power, inspection of the premises would not, for that reason, be impossible or even markedly more difficult. The appellants add that, in the present case, the inspectors could have extended the duration of the inspection in question by a number of days in order to examine all the material on the premises and only remove copies of the material they considered relevant to the inspection. At most, the General Court, in the appellants’ view, relied on considerations of convenience and administrative expediency in that regard.
73 Fourth, they claim that the apparent safeguards considered by the General Court concerning the conduct of the procedure in Brussels are not relevant to the question whether the Commission had the power to continue the inspection at its premises.
74 By their third ground of appeal, which concerns paragraphs 67 and 72 of the judgment under appeal, the appellants complain that the General Court erred in law as regards the geographic scope of the inspection decision. They argue that under both a literal and contextual interpretation, the reference in that decision to the premises controlled by the appellants clearly imposes a limit on the inspections allowed pursuant to that decision. It follows that, in the present case, the Commission’s decision to carry out an inspection at locations other than those of the company in question would have had to be adopted under Article 21 of Regulation No 1/2003 with a judicial authorisation.
75 The Commission disputes those arguments.
76 By their second and third grounds of appeal, which must be examined together, the appellants submit, in essence, that the General Court erred in law in finding that it was lawful for the Commission to continue the inspection in question at its premises in Brussels.
77 In that regard, it must be noted that it is indeed apparent from both the wording and the scheme of Article 20 of Regulation No 1/2003 that an inspection must begin and, in principle, continue, as stated in Article 20(1) of that regulation, in the premises ‘of undertakings and associations of undertakings’, and that is why, first, Article 20(2)(a) of that regulation authorises the Commission to ‘enter any premises, land and means of transport’ of those undertakings and associations of undertakings, and, second, Article 20(3) of that regulation requires the Commission, in good time before the inspection, to give notice to the competition authority of the Member State ‘in whose territory the inspection is to be conducted’. That is also the reason why, in the present case, the inspection decision required the appellants to submit to an inspection ‘in all premises controlled’ by them.
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.
79 The same is true for the inspection decision, which did no more than provide that the inspection in question could take place in all premises controlled by the appellants.
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.
82 In addition, it must be recalled that, as is apparent from paragraph 61 of the judgment under appeal, the appellants do not criticise the Commission, when it examined the copy-image of the hard drive of Mr J.’s computer and copies of the sets of emails found on that computer as well as on Mr R.’s computer at its premises in Brussels, for having acted differently from how it would have acted had that examination taken place at the appellants’ premises. Indeed, the appellants do not dispute that the Commission’s examination at its premises in Brussels was carried out in strict compliance with their rights of defence, since the Commission ensured, throughout the period of the inspection in question, that the data concerned was protected and since it placed in the file only those documents which it had previously satisfied itself were relevant for the purposes of that inspection.
83 The interpretation of Article 20(2)(b) of Regulation No 1/2003 whereby the Commission may, where appropriate, continue at its premises in Brussels the examination which it legitimately commenced on the premises of the undertaking or association of undertakings under inspection, is not called into question by the appellants’ argument that such an interpretation would mean that the power laid down in Article 20(2)(e) of that regulation to question the representatives of the undertaking concerned could also be exercised by the Commission at a location other than the premises of that undertaking. It must be recalled that the present dispute concerns the question whether the Commission acted unlawfully by continuing to examine 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, and does not concern the exercise of the Commission’s powers referred to in Article 20(2)(e) of that regulation.
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.
86 In relation to the appellants’ argument that the Commission’s powers of inspection concerning competition law are clearly circumscribed, as is clear from paragraph 64 of the present judgment, that does not mean that those powers must be interpreted narrowly, as to do so could impair the effective exercise of those powers in certain circumstances and, accordingly, negate the effectiveness of the provisions of Article 20 of Regulation No 1/2003.
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.
88 In the present case, as is apparent from the findings of fact made by the General Court, which are recalled in essence in paragraphs 14 to 19 of the present judgment, the Commission’s inspectors spent a total of four days at the premises of Nexans France, from 28 to 30 January 2009 and additionally 3 February 2009. They made a copy of certain data and placed that data on DRDs which were placed in sealed envelopes and taken back to the Commission’s offices in Brussels. Subsequently, the examination of all the data recorded on the DRDs taken back to Brussels, in the presence of the appellants’ representatives, lasted eight working days, from 2 to 11 March 2009, which implies that, at the point when the Commission decided to continue the inspection in question at its premises in Brussels, a particularly large volume of digital data remained to be examined.
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.
91 In the light of the above, the second and third grounds of appeal must be rejected as unfounded.
92 By their fourth ground of appeal, which concerns paragraphs 156 and 157 of the judgment under appeal, the appellants claim that the General Court erred in law as regards the conclusions to be drawn from the lack of effects of the infringement in question. The appellants submit that in the application initiating proceedings they explained in detail why they took the view that the majority of the sales covered by the infringement in question had not been affected by that infringement. Although the General Court did not dispute those explanations, it declined to take the view that the lack of effects was a decisive factor in setting the gravity factor for the infringement in question, on the sole ground that point 22 of the 2006 Guidelines did not require the Commission to take account of the actual impact of the infringement on the market. In the appellants’ view, the General Court is not constrained by those guidelines when exercising its unlimited jurisdiction, during which it must make its own assessment, taking account of all the circumstances of the case. The General Court’s decision in that regard is therefore, they argue, vitiated by its refusal to exercise its unlimited jurisdiction under the combined provisions of Article 261 TFEU and Article 31 of Regulation No 1/2003 to assess the level of the fine set by the Commission.
93 In their reply, the appellants submit that the reasoning of the Court of Justice in the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773), which led the Court to set aside the judgment which gave rise to that appeal, is applicable to the present case.
94 The Commission contests those arguments.
95 In the first place, it must be recalled that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 128, and of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 192).
96 In the second place, according to the Court’s case-law, the unlimited jurisdiction conferred on the EU Courts by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers those courts, in addition to carrying out a mere review of legality with regard to the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 193 and the case-law cited).
97 In the third place, while the exercise of that jurisdiction does not amount to a review ex officio, and the proceedings are inter partes, the EU Courts are bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all submissions on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity and the duration of the infringement (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 194 and 195 and the case-law cited).
98 Contrary to the appellants’ submissions, it is apparent from the judgment under appeal that the General Court complied with that obligation.
99 It is true that the General Court did not expressly state that the appellants’ arguments concerning the alleged lack of effects of the infringement in question were not capable of persuading it, in the exercise of its unlimited jurisdiction, to reduce the fines imposed on them in the decision at issue. As regards the exercise of jurisdiction expressly conferred on the EU Courts by the legislature, the Court of Justice must be able, in appeal proceedings where a party disputes whether such exercise took place, to ascertain whether the General Court has actually exercised that jurisdiction, in accordance with the case-law referred to in paragraph 96 of the present judgment.
100 However, it is apparent, implicitly but unequivocally, from the judgment under appeal that the General Court did exercise its unlimited jurisdiction and that it came to the conclusion referred to in the preceding paragraph.
101 In that regard, it must be recalled that, in accordance with settled case-law of the Court in relation to appeals, the reasoning in a judgment of the General Court may be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review (see, to that effect, judgments of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15 P, EU:C:2016:682, paragraph 41, and of 26 January 2017, Villeroy & Boch Austria v Commission, C‑626/13 P, EU:C:2017:54, paragraph 42 and the case-law cited).
102 In the present case, in paragraphs 138 to 188 of the judgment under appeal, the General Court examined the appellants’ various claims seeking a reduction of the fines imposed on them in the decision at issue. At the very beginning of that examination, in paragraph 138 of that judgment, the General Court recalled that the review of legality which it is required to carry out in that regard is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003 has conferred on the EU judicature in accordance with Article 261 TFEU.
103 In those circumstances, it must be held that, in carrying out that examination, the General Court did indeed have regard to its unlimited jurisdiction in its review of the legality of the decision at issue.
104 As regards the appellants’ arguments based on the alleged lack of effects of the infringement in question, which are examined in paragraphs 156 and 157 of the judgment under appeal, it is true that in paragraph 156 of that judgment the General Court recalled that, according to the wording of point 22 of the 2006 Guidelines, the Commission does not necessarily have to take account of the actual impact or absence of actual impact of the infringement on the market as an aggravating or mitigating factor in the assessment of the gravity of the infringement for the purpose of calculating the fine. That might suggest that the General Court confined itself, in that regard, only to examining the legality of the decision at issue in the light, in particular, of the 2006 Guidelines. While those guidelines are binding on the Commission itself, to the extent that it has thereby imposed restrictions on the exercise of its discretion (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211), the 2006 Guidelines are not, however, mandatory for the EU Courts, in particular as regards the exercise of their power of unlimited jurisdiction referred to in paragraph 96 of the present judgment (see, to that effect, judgment of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:810, paragraphs 102 and 103), even if they may legitimately decide to draw inspiration from them (see, to that effect, judgment of 26 January 2017, Aloys F. Dornbracht v Commission, C‑604/13 P, EU:C:2017:45, paragraph 75).
105 However, it should be noted that, in the same paragraph of the judgment under appeal, the General Court continued its line of reasoning, stating that it is sufficient that the proportion of the value of sales to be taken into consideration, set by the Commission, is justified by other factors capable of influencing the determination of gravity pursuant to point 22 of the 2006 Guidelines, such as the nature of the infringement, the combined market share of the parties concerned and its geographic scope. The Commission relied on precisely those factors in the present case when establishing the gravity of the infringement in question, as the General Court recalled in paragraph 148 of the judgment under appeal.
106 By referring to those factors in that context, the General Court therefore decided, implicitly but necessarily, in the exercise of its unlimited jurisdiction, that the alleged lack of effects of the infringement in question was not capable, because of those other factors, of persuading it to reduce the fines imposed on the appellants in the decision at issue. In addition, it follows that that was why it drew the conclusion, in paragraph 157 of the judgment under appeal, that the arguments relating to that alleged lack of effects had to be rejected.
107 It must be added that that reading of the judgment under appeal is required whether it is the original version of paragraph 156 of that judgment or the version resulting from the rectification order of 4 May 2020 that is taken into account.
108 The circumstances of the present case can be distinguished from those of the case that gave rise to the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:73), in which the General Court failed to provide any response to one of the appellants’ arguments concerning the exercise of its unlimited jurisdiction.
109 The fact that, in the present case, the General Court did not fail to take account of its unlimited jurisdiction is, moreover, confirmed by the fact that in paragraph 188 of the judgment under appeal, it reached the conclusion that the appellants’ request for a reduction of the amount of the fines imposed on them had to be rejected because, first, the pleas and arguments raised by them in support of that request had been rejected and, second, there were no factors which, in that case, might have justified a reduction of the amount of those fines.
110 The fourth ground of appeal must therefore be rejected as being unfounded.
111 By their fifth ground of appeal, which concerns paragraphs 180 to 184 of the judgment under appeal, the appellants submit that the General Court’s finding - that because of the appellants’ participation in the European cartel configuration, the Commission was entitled to increase the gravity factor used to calculate the amount of the fines imposed on them by 2% - is vitiated by a manifest error of assessment and a failure to state reasons regarding the extent to which the European configuration could cause additional harm to competition in the EEA. According to the appellants, the General Court could not confine itself to holding that there is no doubt that the European configuration increased the harm to competition, particularly since the A/R cartel configuration was, on the whole, fully implemented. Furthermore, they claim that the Commission and the General Court acknowledged that the appellants had produced evidence demonstrating that not all European sales to European customers were affected.
112 In the Commission’s view, that ground of appeal is unfounded.
113 It must be stated that the present ground of appeal is based on a misreading of the judgment under appeal. Contrary to the appellants’ submissions, the General Court in no way considered that the appellants had demonstrated that the infringement in question had not had an impact on all European sales. On the contrary, the General Court found in paragraph 181 of the judgment under appeal that the European cartel configuration implied a further commitment to allocating projects which went beyond the existing allocation rules in the ‘A/R cartel configuration’.
114 In these circumstances, the General Court’s finding in paragraph 182 of the judgment under appeal, that there was no doubt that sharing submarine and underground power cable projects within the European cartel configuration had increased the harm to competition caused in the EEA by the A/R cartel configuration, is not vitiated by any failure to state reasons.
115 It must also be held that the General Court did not err in law in taking the view that sharing projects among the European undertakings caused additional harm to competition to that caused by the A/R cartel configuration. As observed by the Advocate General in point 126 of her Opinion, the close connection between those two configurations did not alter the fact that the European cartel configuration constituted, by its very nature, a commitment to allocating projects not inherent in the A/R cartel configuration. The General Court’s finding that that additional harm to competition could legitimately be punished by an increased fine is therefore not vitiated by an error of assessment.
116 It follows that the fifth ground of appeal must be rejected as being unfounded.
117 Since none of the grounds of appeal put forward by the appellants in support of their appeal can succeed, the appeal must be dismissed in its entirety.
118 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
119 Since the appellants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission.