1 By its appeal, Intermarché Casino Achats SARL seeks to have set aside in part the judgment of the General Court of the European Union of 5 October 2020, Intermarché Casino Achats v Commission, T‑254/17 (not published, EU:T:2020:459; ‘the judgment under appeal’), by which the General Court dismissed in part its action under Article 263 TFEU seeking annulment of Commission Decision C (2017) 1056 final of 9 February 2017 ordering Intermarché Casino Achats and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (AT.40466) - Tute 1) (‘the decision at issue’).
2 Recital 25 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) states: ‘The detection of infringements of the competition rules is growing ever more difficult, and, in order to protect competition effectively, the [European] Commission’s powers of investigation need to be supplemented. The Commission should in particular be empowered to interview any persons who may be in possession of useful information and to record the statements made. In the course of an inspection, officials authorised by the Commission should be empowered to affix seals for the period of time necessary for the inspection. Seals should normally not be affixed for more than 72 hours. Officials authorised by the Commission should also be empowered to ask for any information relevant to the subject matter and purpose of the inspection.’
3 Chapter V, entitled ‘Powers of investigation’, includes Article 17 of that regulation, itself entitled ‘Investigations into sectors of the economy and into types of agreements’, paragraph 1 of which states: ‘Where the trend of trade between Member States, the rigidity of prices or other circumstances suggest that competition may be restricted or distorted within the common market, the Commission may conduct its inquiry into a particular sector of the economy or into a particular type of agreements across various sectors. In the course of that inquiry, the Commission may request the undertakings or associations of undertakings concerned to supply the information necessary for giving effect to Articles [101] and [102 TFEU] and may carry out any inspections necessary for that purpose.’
4 Article 19 of that regulation, entitled ‘Power to take statements’, provides: ‘1. In order to carry out the duties assigned to it by this Regulation, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation. 2. Where an interview pursuant to paragraph 1 is conducted in the premises of an undertaking, the Commission shall inform the competition authority of the Member State in whose territory the interview takes place. If so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorised by the Commission to conduct the interview.’
5 Article 20 of that regulation, 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. 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. 3. The officials and other accompanying persons authorised by the Commission to conduct an inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the penalties provided for in Article 23 in case the production of the required books or other records related to the business is incomplete or where the answers to questions asked under paragraph 2 of the present Article are incorrect or misleading. In good time before the inspection, the Commission shall give notice of the inspection to the competition authority of the Member State in whose territory it is to be conducted. 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 [of the European Union]. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted. 5. Officials of as well as those authorised or appointed by the competition authority of the Member State in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission. To this end, they shall enjoy the powers specified in paragraph 2. 6. Where the officials and other accompanying persons authorised by the Commission find that an undertaking opposes an inspection ordered pursuant to this Article, the Member State concerned shall afford them the necessary assistance, requesting where appropriate the assistance of the police or of an equivalent enforcement authority, so as to enable them to conduct their inspection. 7. If the assistance provided for in paragraph 6 requires authorisation from a judicial authority according to national rules, such authorisation shall be applied for. Authorisation may also be applied for as a precautionary measure. 8. Where authorisation as referred to in paragraph 7 is applied for, the national judicial authority shall control that the Commission decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask the Commission, directly or through the Member State competition authority, for detailed explanations in particular on the grounds the Commission has for suspecting infringement of Articles [101] and [102 TFEU], as well as on the seriousness of the suspected infringement and on the nature of the involvement of the undertaking concerned. However, the national judicial authority may not call into question the necessity for the inspection nor demand that it be provided with the information in the Commission’s file. The lawfulness of the Commission decision shall be subject to review only by the Court of Justice.’
6 Article 23 of Regulation No 1/2003, entitled ‘Fines’, provides in paragraph 1: ‘The Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently: … (c) they produce the required books or other records related to the business in incomplete form during inspections under Article 20 or refuse to submit to inspections ordered by a decision adopted pursuant to Article 20(4); (d) in response to a question asked in accordance with Article 20(2)(e), - they give an incorrect or misleading answer, - they fail to rectify within a time limit set by the Commission an incorrect, incomplete or misleading answer given by a member of staff, or - they fail or refuse to provide a complete answer on facts relating to the subject matter and purpose of an inspection ordered by a decision adopted pursuant to Article 20(4); (e) seals affixed in accordance with Article 20(2)(d) by officials or other accompanying persons authorised by the Commission have been broken.’
7 Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), entitled ‘Initiation of proceedings’, provides in paragraph 3: ‘The Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings.’
8 Chapter III, entitled ‘Investigations by the Commission’, includes Article 3 of Regulation No 773/2004, itself entitled ‘Power to take statements’, which provides: ‘1. Where the Commission interviews a person with his consent in accordance with Article 19 of Regulation … No 1/2003, it shall, at the beginning of the interview, state the legal basis and the purpose of the interview, and recall its voluntary nature. It shall also inform the person interviewed of its intention to make a record of the interview. 2. The interview may be conducted by any means including by telephone or electronic means. 3. The Commission may record the statements made by the persons interviewed in any form. A copy of any recording shall be made available to the person interviewed for approval. Where necessary, the Commission shall set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.’
9 The background to the dispute was summarised as follows in paragraphs 2 to 8 of the judgment under appeal: ‘2. Intermarché Casino Achats … is the joint subsidiary of EMC Distribution, itself a subsidiary of Casino, Guichard-Perrachon (“Casino”), and ITM Alimentaire International, itself a subsidiary of ITM Entreprises (“Intermarché”), which operate mainly in the food and non-food distribution sector. Its main task is the negotiation, in the name and on behalf of its parent companies, of product purchasing conditions and the conclusion with the suppliers of the annual agreement provided for by French law. 3. Having received information about exchanges of information between Casino and Intermarché in the fast-moving consumer goods sector, the European Commission adopted [the decision at issue]. 4. The operative part of the decision [at issue] reads as follows: “Article 1 Intermarché Casino Achats …, and all companies directly or indirectly controlled by it, are required to submit to an inspection in relation to their possible participation in concerted practices contrary to Article 101 [TFEU] in the markets for the supply of fast-moving consumer goods, in the market for the sale of services to manufacturers of branded goods and in the markets for consumer sales of fast-moving consumer goods. Those concerted practices consist in: (a) exchanges of information, since 2015, between undertakings and/or associations of undertakings, in particular [International Casino Dia Corporation (ICDC)] …, and/or its members, in particular Casino and AgeCore and/or its members, in particular Intermarché, concerning discounts obtained by them in the markets for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors and prices in the market for the sale of services to manufacturers of branded products in the food products, hygiene products and maintenance products sectors, in several Member States of the European Union, notably in France, and (b) exchanges of information, since at least 2016, between Casino and Intermarché concerning their future business strategies, particularly in terms of product range, development of shops, e-commerce and advertising policy in the markets for the supply of fast-moving consumer goods and in the markets for consumer sales of fast-moving consumer goods, in France. The inspection may take place in any of the undertaking’s premises … [Intermarché Casino Achats] shall grant the officials and other persons authorised by the Commission to conduct an inspection and the officials and other persons authorised by the Competition Authority of the Member State concerned to assist them or appointed by that Member State for that purpose access to all of its premises and means of transport during normal office hours. It shall make available for inspection the books and any other business document, irrespective of the medium on which they are stored, if the officials and other authorised persons so request and shall allow them to examine those books and documents in situ and to take or obtain copies or extracts from those books or documents in any form whatsoever. It shall permit seals to be placed on all the business premises or books or documents throughout the inspection period in so far as that is necessary for the purposes of the inspection. It shall give oral explanations immediately and in situ on the subject matter and the aim of the inspection if those officials or persons so request and shall authorise any representative or member of the staff to provide such explanations. It shall permit those explanations to be recorded in any form whatsoever. Article 2 The inspection may commence on 20 February 2017 or shortly thereafter. Article 3 [Intermarché Casino Achats] and all companies directly or indirectly controlled by it are the addressees of the present decision. This decision shall be notified, just before the inspection, to the undertaking … to which it is addressed, pursuant to Article 297(2) [TFEU].” 5. Having been informed of that inspection by the Commission, the Autorité de la concurrence (Competition Authority, France) made application to the judge of liberty and detention of the tribunal de grande instance (Regional Court) of Créteil (France) for authorisation to carry out the visit and seizure operations at the appellant’s premises. By order of 17 February 2017, that judge of liberty and detention authorised the visits and seizures requested as a precautionary measure. As none of the measures taken during the inspection required the use of “enforcement authorities” for the purposes of Article 20(6) to (8) of Regulation No 1/2003, that order was not notified to the appellant. 6. The inspection commenced on 20 February 2017, when the Commission’s inspectors, accompanied by representatives of the French Competition Authority, attended the appellant’s headquarters and notified it of the decision [at issue]. 7. In the course of the inspection, the Commission, inter alia, visited offices, collected material, in particular computer equipment (portable computers, mobile phones, tablets, storage devices), interviewed several individuals and copied the contents of the material collected. 8. The appellant sent the Commission a letter dated 24 February 2017 in which it expressed reservations as to the regularity of the interviews and, more generally, the inspection. Those reservations were supplemented by a letter sent to the Commission on 13 March 2017.’
10 By application lodged at the Registry of the General Court on 28 April 2017, the appellants brought an action under Article 263 TFEU for annulment of the decision at issue. The appellants relied, in essence, on three pleas in law in support of their action. The first plea alleged the illegality of Article 20 of Regulation No 1/2003; the second alleged breach of the obligation to state reasons; and the third alleged breach of the right to the inviolability of the home.
11 By way of measures of organisation of procedure, the General Court requested the Commission to produce indicia of presumed infringements which it had in its possession on the date of the decision at issue.
12 In response to that request, the Commission produced inter alia minutes of interviews held in 2016 and 2017 with 13 suppliers of the fast-moving consumer goods concerned which regularly entered into agreements with Casino and Intermarché (Annexes Q.1 to Q.13 to the Commission’s response of 10 January 2019) (‘the supplier interviews’).
13 By the judgment under appeal, the General Court, having found that the Commission did not possess sufficiently serious indicia to suspect the existence of an infringement consisting of exchanges of information between Casino and Intermarché concerning their future business strategies, annulled Article 1(b) of the decision at issue. It dismissed the action as to the remainder and ordered each of the parties to bear their own costs.
14 By its appeal, the appellant claims that the Court should: - set aside paragraph 2 and, consequently, point 3 of the operative part of the judgment under appeal; - annul Article 1(a) of the decision at issue; and - order the Commission to pay the costs of all proceedings before the General Court and the Court of Justice.
15 The Commission contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
16 The Council of the European Union contends that the Court should: - dismiss the first ground of appeal; and - order the appellant to pay the costs.
17 The appellant puts forward three grounds of appeal in support of its appeal. The first ground of appeal alleges that the General Court made several errors of law in rejecting the plea of illegality of Article 20(1) and (4) of Regulation No 1/2003, based on the lack of remedies against the conduct of inspections. The second ground of appeal alleges that the General Court infringed Article 19 of Regulation No 1/2003, Article 3 of Regulation No 773/2004 and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) in finding that the minutes produced by the Commission, in order to establish that the indicia in its possession were sufficiently serious, were not vitiated by a procedural irregularity affecting their probative value. The third ground of appeal alleges that the General Court infringed the right to the inviolability of the home by rejecting the appellant’s argument based on the absence, in the decision at issue, of a temporal limitation of the inspection.
18 The appellant submits that the General Court made several errors of law in rejecting, in paragraphs 46 to 79 of the judgment under appeal, the plea of illegality of Article 20(1) and (4) of Regulation No 1/2003, based on the lack of remedies against the conduct of the inspections.
19 By its first complaint, the appellant submits that, contrary to the General Court’s assertion in paragraph 51 of the judgment under appeal, in the judgments of the European Court of Human Rights of 21 February 2008, Ravon and Others v. France (CE:ECHR:2008:0221JUD001849703); of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808); of 21 December 2010, Compagnie des gaz de pétrole Primagaz v. France (CE:ECHR:2010:1221JUD002961308); and of 2 October 2014, Delta Pekárny a.s. v. The Czech Republic (CE:ECHR:2014:1002JUD000009711), the European Court of Human Rights did not hold that the remedies had to be assessed as a whole in order to satisfy the requirements of that court relating to the right to an effective remedy. The General Court’s conclusion in paragraph 69 of the judgment under appeal, to the effect that the existence of an effective remedy can be assessed on the basis of an overall analysis of the multiple remedies which, individually, do not satisfy the requirements laid down by the European Court of Human Rights, is therefore vitiated by an error of law.
20 By its second complaint, the appellant submits that, in any event, the General Court erred in law in stating that the existing legal remedies allowed all disputes concerning the conduct of inspections to be brought before the Courts of the European Union.
21 In the first place, it observes that the General Court did not carry out a complete analysis of the legal remedies available to challenge decisions taken in the context of the inspections but relies, anecdotally, on actions available to challenge acts of the Commission rejecting a request for legal professional privilege and actions to challenge Commission measures rejecting an application for protection in respect of the private life of the members of staff of an undertaking, referred to by the General Court in paragraphs 61 and 62 of the judgment under appeal. The latter action is, moreover, uncertain to date and, on that basis, ineffective (European Court of Human Rights, 10 September 2010, McFarlane v. Ireland, CE:ECHR:2010:0910JUD003133306).
22 In the second place, the General Court does not identify any immediate remedy to challenge other measures taken pursuant to an inspection decision, such as the seizure of documents falling outside the scope of the inspection. The undertaking subject to the inspection must wait for a final decision closing the procedure under Article 101 TFEU in order to challenge such measures, as is apparent from the case-law of the General Court. Such a remedy was, moreover, considered insufficient by the European Court of Human Rights, because it was uncertain and not sought within a reasonable time, in its judgments of 21 December 2010, Société Canal Plus and Others v. France (CE:ECHR:2010:1221JUD002940808), and of 21 December 2010, Compagnie des gaz de pétrole Primagaz v. France (CE:ECHR:2010:1221JUD002961308).
23 In the third place, the other remedies referred to by the General Court in the judgment under appeal also fail to meet the requirements of the Charter.
24 First, the remedy, referred to in paragraph 59 of the judgment under appeal, of challenging the inspection decision is manifestly insufficient since, by definition, it does not relate to the conduct of the inspection.
25 Moreover, challenging a possible new inspection decision, based on the use of documents unlawfully seized following a first inspection decision, referred to in paragraph 69 of the judgment under appeal, is uncertain and hypothetical.
26 Secondly, the possibility for an undertaking, referred to in paragraph 60 of the judgment under appeal, to object to the inspection measures and then bring an action against a decision imposing a penalty for obstruction and challenge, in that context, the conduct of the inspection, does not constitute an effective remedy, as held recently by the Court of Justice in the judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 66), a point long recognised by the European Court of Human Rights. Apart from the fact that the existence of that action is uncertain, since it is contingent on the adoption by the Commission of a decision imposing a penalty, it presupposes that the undertaking takes the risk of a fine.
27 Thirdly, since the conduct of an inspection cannot, subject to an exception relating to certain specific measures, be the subject of an action, an action for interim measures is not possible.
28 Fourthly, as regards the action for non-contractual damages referred to in the judgment under appeal, the appellant points out that, in its judgment of 21 February 2008, Ravon and Others v. France (CE:ECHR:2008:0221JUD001849703, § 33), the European Court of Human Rights held that the possibility of obtaining compensation was not a substitute for effective judicial review because it did not allow for a review of the lawfulness of measures taken on the basis of a search.
29 The General Court accordingly erred in law in holding that the existing remedies, either individually or jointly, made it possible to offer an effective remedy against the conduct of inspections in the light of the case-law of the European Court of Human Rights and Article 47 of the Charter.
30 In the fourth place, the appellant submits that, in any event, the complex combination of different actions, envisaged by the General Court, is incompatible with the requirements of transparency and comprehensibility of the rule of law for litigants, a fortiori as regards a fundamental right. It also points out that such complexity is not necessary. The European Union could easily provide for an immediate right of action against the conduct of inspections, as French law does.
31 The Commission and the Council dispute the appellant’s arguments.
32 As a preliminary point, it should be noted that paragraphs 46 to 79 of the judgment under appeal, which the appellant disputes in the context of the first ground of appeal, form part of the grounds on which the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, alleging infringement of the right to an effective remedy on account of the lack of a remedy against the measures taken in the context of an inspection.
33 More specifically, in paragraphs 46 to 50 of the judgment under appeal, the General Court first of all observed that the right to an effective remedy is enshrined in Article 47 of the Charter and in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). After observing that the ECHR does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into the EU legal order, so that the review of legality must be carried out solely in the light of the fundamental rights guaranteed by the Charter, it pointed out that it follows both from Article 52 of the Charter and from the explanations relating to that article that the provisions of the ECHR and the case-law of the European Court of Human Rights relating to those provisions must be taken into account when interpreting and applying the provisions of the Charter in a given case.
34 It held in that regard that, according to the case-law of the European Court of Human Rights, observance of the right to an effective remedy must be examined, in relation to inspections of private premises, in the light of the following four conditions: first, there must be effective judicial review, in fact and in law, of the lawfulness of the decision to carry out such inspections or of the measures taken in the context of those inspections; second, the remedy or remedies available must make it possible, in the event of an irregularity being found, either to prevent the operation from occurring or, in the event that an irregular operation has already taken place, to provide the person concerned with appropriate relief; third, the availability of the action concerned must be certain; and, fourth, judicial review must take place within a reasonable time.
35 The General Court then observed, in paragraph 51 of the judgment under appeal, that it was also apparent from that case-law that the conduct of an inspection operation had to be amenable to effective judicial review and that the review had to be effective in the particular circumstances of the case in question, which involved taking into account all the legal remedies available to an undertaking under inspection and thus an overall analysis of those legal remedies. In paragraphs 54 and 55 of the judgment under appeal, the General Court held that, since verification of observance of the right to an effective remedy must be based on an overall analysis of the legal remedies capable of giving rise to a review of the measures taken in the context of an inspection, it was irrelevant that each of the legal remedies examined did not individually satisfy the conditions required for the existence of a right to an effective remedy to be accepted.
36 The General Court further stated, in paragraphs 56 and 57 of the judgment under appeal, that, in addition to the possibility of making requests to the Commission’s hearing officer, there were six legal remedies enabling challenges relating to an inspection operation to be brought before the EU judicature, namely an action challenging the inspection decision; an action challenging the Commission’s decision penalising obstruction of the inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003; an action challenging any act satisfying the conditions laid down in the case-law to be a challengeable act adopted by the Commission following the inspection decision and in the course of the inspection operations, such as a decision rejecting a request for legal professional privilege; an action against the decision closing the procedure initiated under Article 101 TFEU; an action for interim measures; and an action for non-contractual damages.
37 In paragraphs 58 to 66 of the judgment under appeal, the General Court explained how it considered that those legal remedies allowed challenges to the conduct of inspections to be brought before the EU judicature.
38 Lastly, the General Court held, following an analysis carried out in paragraphs 68 to 78 of the judgment under appeal, that the system for reviewing the conduct of inspection operations comprising all the legal remedies listed in paragraph 36 of the present judgment could be regarded as satisfying the four conditions stemming from the case-law of the European Court of Human Rights.
39 Thus, in paragraph 79 of the judgment under appeal, the General Court rejected the plea of illegality of Article 20(4) of Regulation No 1/2003, based on infringement of the right to an effective remedy.
40 As regards the first complaint, alleging that the General Court should have carried out an individual examination of the various remedies in order to ascertain whether the right to an effective remedy against the measures taken in the context of an inspection is safeguarded, it must be borne in mind that the right to an effective remedy is enshrined in Article 47 of the Charter.
41 It must also be borne in mind that Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to those guaranteed by the ECHR, the meaning and scope of those rights are to be the same as those laid down by the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 116).
42 As is clear from the explanations relating to Article 47 of the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter, the first and second paragraphs of Article 47 of the Charter correspond to Article 6(1) and Article 13 of the ECHR (judgment of 19 November 2019, A. K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 117). According to the case-law of the European Court of Human Rights, Article 6(1) of the ECHR constitutes a lex specialis in relation to Article 13 of that convention, since the requirements of the latter are included in the stricter requirements of the former (European Court of Human Rights, 15 March 2022, Grzęda v. Poland, CE:ECHR:2022:0315JUD004357218, § 352 and the case-law cited).
43 The Court has also held that it must ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (see, to that effect, judgment of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraph 35).
44 In that regard, it should be noted that it is apparent from the case-law of the European Court of Human Rights that the protection afforded by Article 13 of the ECHR does not go so far as to require any particular form of remedy (European Court of Human Rights, 20 March 2008, Boudaïeva and Others v. Russia, CE:ECHR:2008:0320JUD001533902, § 190) and that, even if no remedy offered by domestic law by itself satisfies the requirements of Article 13 of the ECHR, the aggregate of remedies provided for under domestic law may do so (European Court of Human Rights, 10 July 2020, Mugemangango v. Belgium, CE:ECHR:2020:0710JUD000031015, § 131 and the case-law cited).
45 Furthermore, in the event of an infringement of the right to respect for the home, enshrined in Article 8 of the ECHR, a remedy is effective, within the meaning of Article 13 of the ECHR, if the applicant has access to a procedure enabling them to contest the lawfulness of the searches and seizures and obtain appropriate redress if they were unlawfully ordered or executed (European Court of Human Rights, 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, § 84).
46 In that regard, it is apparent from the case-law of the European Court of Human Rights relating to Article 6(1) or Article 8 of the ECHR that, in relation to inspections of private premises, the failure by a judge to grant prior authorisation for inspection, who could have circumscribed or reviewed the conduct of that inspection, may be counterbalanced by ex post facto judicial review of the legality and necessity of such a measure of inquiry, provided that that review is effective in the particular circumstances of the case in question. This means that the persons concerned must be able to obtain effective judicial review, both in fact and in law, of the measure at issue and its conduct; where an operation found to be irregular has already taken place, the remedy or remedies available must provide the person concerned with appropriate redress (European Court of Human Rights, 2 October 2014, Delta Pekárny a.s. v. The Czech Republic, CE:ECHR:2014:1002JUD000009711, § 86 and § 87 and the case-law cited).
47 Thus, since ex post judicial review of the inspection may, under certain conditions, counterbalance the absence of prior judicial review and appropriate redress must be provided by ‘the remedy or remedies available’, it must be held that, in principle, account should be taken of all the remedies available in order to determine whether the requirements of Article 47 of the Charter are met.
48 Furthermore, since the appellants alleged, by means of an objection, the illegality of Article 20 of Regulation No 1/2003, the General Court, as the Advocate General observed in point 51 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), was required, in order to rule on that objection, to carry out an overall assessment of the system of judicial review of the measures taken in the context of inspections, going beyond the particular circumstances of the case in question.
49 In those circumstances, it must be held that the appellants are wrong to claim that the General Court erred in law by carrying out an overall analysis of all the legal remedies available to challenge the conduct of the inspections.
50 The first complaint must accordingly be rejected.
51 Turning to the second complaint, it should be noted, in the first place, as the Advocate General observed, in essence, in point 66 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), that the absence of an established judicial practice cannot be decisive for denying the effectiveness of a legal remedy.
52 Moreover, the possibility, alluded to by the General Court in paragraph 62 of the judgment under appeal, of bringing an action against a decision rejecting an application for protection on the basis of the privacy of the members of the staff of an undertaking constitutes merely the application to a specific case of settled case-law, according to which acts which may be the subject of an action for annulment under Article 263 TFEU are measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant for annulment by bringing about a distinct change in its legal position, as observed in essence by the Advocate General in point 67 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578).
53 In the second place, as regards the appellant’s line of argument to the effect that the General Court erred in law in failing to identify any immediate remedy making it possible to challenge the seizure of documents falling outside the scope of the inspection, it must be stated that, as is apparent from paragraph 69 of the judgment under appeal, which is disputed by the appellant, that line of argument concerns a situation in which the inspection concerned, in the context of which documents falling outside the scope of the inspection could be seized, would result not in a decision finding an infringement and imposing a penalty, but in the opening of a new investigation and the adoption of a new inspection decision.
54 It should be noted in that regard that, in paragraph 69 of that judgment, the General Court referred to the various legal remedies which it examined in paragraphs 57 to 66 of the judgment under appeal and found, inter alia in paragraph 59 of that judgment, that the undertakings inspected could bring an action for annulment of the new inspection decision and therefore challenge the legality of the indicia on which that decision was based on the ground that it had been improperly obtained during the previous inspection.
55 Furthermore, as regards the immediate remedies for challenging the measures taken pursuant to an inspection decision, it should be noted that the General Court was entirely correct to hold, in essence, in paragraphs 56 and 57 of the judgment under appeal, that those undertakings have the possibility of bringing an action challenging any act adopted by the Commission following an inspection decision, including in the course of the inspection operations, provided that that act is challengeable through such an action in view of the conditions laid down in the case-law.
56 In the third place, as regards the assessments made by the General Court in the judgment under appeal of the action challenging the inspection decision, the action challenging the Commission’s decision penalising obstruction of the inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003, the action for interim measures and the action for non-contractual damages, it is apparent from paragraph 47 of the present judgment that no legal remedy available to an undertaking subject to an inspection measure should be dismissed by the General Court, so long as that legal remedy makes it possible to challenge one or more measures taken in the context of that inspection.
57 That said, it should first be noted that, admittedly, an action against an inspection decision cannot constitute a legal remedy against the measures subsequently taken in the context of the inspection, since the lawfulness of an act must be assessed in the light of the circumstances of law and of fact existing at the time when that decision was adopted, so that acts subsequent to a decision cannot affect its validity (see, to that effect, judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraphs 45 and 46 and the case-law cited).
58 However, as observed by the General Court in paragraph 69 of the judgment under appeal, in the event that the inspection in question results not in a decision finding an infringement and imposing a penalty, but in the opening of a new investigation and the adoption of a new inspection decision, the inspected undertakings could bring an action for annulment of that decision by challenging the lawfulness of the indicia on the basis that it was obtained improperly during the previous inspection.
59 As is apparent from paragraph 59 of the judgment under appeal, such an action may lead to the annulment of that new inspection decision if the measures taken by the Commission during the previous inspection are not consistent with the scope of the decisions ordering it (see, to that effect, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraphs 56 to 67 and 71). It follows that the General Court did not err in law in taking that remedy into account.
60 Second, as regards the action brought under Article 263 TFEU against a Commission decision penalising obstruction of an inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003, it is true that the Court has already held that national legislation which excludes the possibility, for a person holding information to whom the competent national authority addresses a decision ordering that information be provided, of bringing a direct action against that decision, does not respect the essence of the right to an effective remedy guaranteed by Article 47 of the Charter and, consequently, that Article 52(1) of the Charter precludes such legislation (judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 69).
61 However, the Court arrived at that interpretation on the ground that that person holding information, who is distinct from the taxpayer concerned by the investigation giving rise to the decision ordering that information be provided, is unable to access a court without first infringing that decision by refusing to comply with the order it contains and thus being subject to the penalty attached to non-compliance with that decision (judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 68).
62 The undertakings to which an inspection decision relates are not in a comparable situation. As observed by the Advocate General in point 79 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), an action against a Commission decision taken under Article 23(1) of Regulation No 1/2003 in the event of obstruction of the inspection is not the only legal remedy available to inspected undertakings for challenging the regularity of the conduct of the inspection.
63 Thirdly, as regards the appellant’s argument seeking, in essence, to challenge the effectiveness of the action for interim measures, referred to by the General Court in paragraphs 64 and 65 of the judgment under appeal, on the ground that the conduct of an inspection cannot, subject to an exception relating to certain specific measures, be the subject of a main action, suffice it to bear in mind that the measures referred to in paragraphs 61 and 62 of the judgment under appeal, which are open to challenge on the basis of Article 263 TFEU, were cited by the General Court only as examples.
64 Fourthly, as regards the action for non-contractual damages, although it is apparent from paragraph 33 of the judgment of the European Court of Human Rights of 21 February 2008, Ravon and Others v. France (CE:ECHR:2008:0221JUD001849703), in relation to inspections of private premises, an action for damages alone cannot, in itself, ensure respect for the right to a fair trial and the right to respect for private and family life, that does not mean that such an action cannot form part of the remedies available to the undertakings concerned and offer them appropriate redress, in particular where an inspection operation which has already taken place has been found to be irregular.
65 Therefore, the General Court did not err in law when it also took account of that action, in the context of its overall analysis, of the possibility for undertakings to challenge the measures taken in the context of the inspections.
66 Furthermore, as observed by the General Court in paragraph 78 of the judgment under appeal, the uncertain nature of the decision closing the procedure under Article 101 TFEU and the time limit for adopting it must be seen in the light of the fact that, until that decision, the Commission does not adopt a definitive position on the existence of an infringement and on the subsequent penalty imposed on the inspected undertaking. Certain harmful effects caused to an undertaking as a result of irregularities committed during the inspection are capable of materialising only if and at the time when such a decision is adopted, as observed by the Advocate General in point 59 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578).
67 By contrast, as observed by the General Court in paragraph 78 of the judgment under appeal, if other harmful consequences were to occur for the inspected undertaking during that period, such as harmful conduct on the part of the Commission or the adoption of a new inspection decision on the basis of the information obtained, it would be open to that undertaking, immediately and without awaiting the outcome of the infringement proceedings, to bring an action before the court for damages or for annulment of the new inspection decision.
68 In the fourth and last place, as regards the appellant’s claims relating to the complexity of the system of legal remedies for challenging the conduct of inspections, it must be emphasised that, according to the case-law of the European Court of Human Rights referred to in paragraph 46 of the present judgment, in order for the requirements of Article 6(1) of the ECHR to be satisfied, the undertakings involved in an inspection of private premises must be able to have the merits of their challenges examined and appropriate redress granted. It is not necessary, however, that all the complaints which may be put forward to challenge the measures taken by the public authority on the basis of the decision ordering the inspection be so in the context of one and the same remedy.
69 Accordingly, the second complaint must be rejected as must, therefore, the first plea in its entirety.
70 By the second ground of appeal, the appellant submits that the General Court infringed Article 19 of Regulation No 1/2003, Article 3 of Regulation No 773/2004 and Article 7 of the Charter by holding, in paragraphs 190 to 202 of the judgment under appeal, that the minutes produced by the Commission, in order to establish that the indicia in its possession were sufficiently serious, were not vitiated by a procedural irregularity capable of affecting their probative value.
71 First, by holding, in paragraph 190 of the judgment under appeal, that the rules in Chapter V of Regulation No 1/2003, entitled ‘Powers of investigation’, were not applicable before the opening of a formal investigation, the General Court drew a distinction between two stages of the procedure, that predating the opening of a formal investigation and that subsequent to such initiation, which is not apparent either from Regulation No 1/2003 or from Regulation No 773/2004.
72 Chapter V of Regulation No 1/2003, which contains Article 19 thereof, does not introduce any distinction between a formal and informal investigation, or a preliminary and advanced investigation. Such a distinction would, moreover, give rise to insoluble problems of definition and border. In addition, Regulation No 773/2004 reiterates that the Commission may exercise its powers of investigation under Chapter V before initiating proceedings. It is apparent, moreover, from the Commission’s answers to the written questions put by the General Court that it itself considered that Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 were applicable to interviews with suppliers.
73 Second, the General Court’s statement to the effect that the procedural rules laid down in those provisions are not applicable in the present case is not supported by the case-law cited in paragraph 91 of the judgment under appeal, which concerned the assessment of the reasonableness of the duration of the administrative procedure.
74 Moreover, the distinction drawn by the General Court in the judgment under appeal between pre-investigation and investigation is of the same nature as that rejected by the Court of Justice in the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632).
75 Third, that interpretation is also contrary to the case-law concerning the taking of oral evidence. In the appellant’s submission, oral evidence is authorised in administrative proceedings only on condition that information given orally to a public administration in the course of a meeting is normally captured and stored, by means of a sound recording, or recorded in writing, by means of the drafting of minutes.
76 It is also apparent from the travaux préparatoires for Regulation No 1/2003 that one of the reasons for Article 19 of that regulation was to allow oral statements to be presented as evidence. Similarly, it is apparent from the travaux préparatoires for Regulation No 773/2004 that the purpose of the validation of the content of the recording by the person heard was to ensure the accuracy of the statements.
77 That is also confirmed by points 31 and 32 of the 2006 Leniency Notice, which provide that the obligation to record applies from the first oral statements obtained by the Commission in order to ensure the accuracy of the evidence collected.
78 Fourth, the General Court’s statement, in paragraph 190 of the judgment under appeal, to the effect that indicia are subject to less stringent procedural rules than evidence finds no support in the case-law and is contradicted by the Commission’s practice in recording leniency applications.
79 The General Court’s interpretation is incompatible with the legislature’s intention to create, by means of Article 19 of Regulation No 773/2004, a legal basis enabling the Commission to add oral statements to the procedural file, whilst laying down, in Article 3 of Regulation No 773/2004, procedural rules intended to ensure the accuracy of those statements.
80 It cannot be accepted that the Commission may gather indicia during a phase preceding the investigation, without complying with the provisions of Article 19 of Regulation No 1/2003. Such an interpretation would allow the Commission to carry out investigations outside any legal framework and any judicial review.
81 The appellant submits that, although the Commission is free to receive information informally from third parties, it may not rely on that information without observing the procedural requirements intended to ensure the completeness and reliability of that information.
82 Fifth, the fact that the Court has the power to question witnesses cannot compensate for the failure to record interviews.
83 Sixth, as regards the General Court’s reference, in paragraph 201 of the judgment under appeal, to the potential deterrent effects that a formal interview may have on the propensity of witnesses to provide information and report infringements, such effects could be avoided, in the appellant’s submission, by guaranteeing the anonymity of sources of information. Furthermore, as the appellant asserted before the General Court, the highly standardised nature of the alleged reports, the Commission’s refusal to give the dates on which they were drawn up and the clerical errors noted cast doubt on how faithful those documents are to the discussions actually held.
84 Seventh, the need for speed in the adoption of inspection decisions cannot justify a disproportionate interference with fundamental rights. There is, moreover, nothing to prevent the recording of the oral statements or, at a minimum, the drawing up of minutes immediately following the interviews and then having them confirmed by the undertakings concerned.
85 Eighth, the fact that statements gathered without the procedural rules of Article 19 of Regulation No 1/2003 being observed cannot be used as evidence of an infringement does not constitute a remedy for infringement of the rights of the defence in the case of an action challenging an inspection decision. Such a solution would undermine the effectiveness of the investigations, since that would mean that oral statements collected before an inspection could not be used to establish an infringement.
86 The appellant submits that the General Court erred in law in holding, in paragraphs 202 and 218 of the judgment under appeal, that the documents produced by the Commission could be taken into account in order to determine the existence of sufficiently serious indicia justifying the infringement decision, when the procedural rules governing the recording of oral statements had not been observed. Consequently, the General Court’s conclusion that the Commission had such indicia of the first infringement is vitiated. That conclusion is based solely on the documents which did not satisfy the requirements laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, as is apparent from paragraphs 250, 252, 253 and 256 of the judgment under appeal.
87 The Commission disputes that line of argument.
88 As a preliminary point, the Commission states that the opening of the investigation differs from the opening of a file and from the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004. The opening of the investigation takes place from the time of the first use of its investigative powers and the adoption of measures involving an accusation of the commission of an infringement and having significant implications for the situation of the suspected entities. The opening of the file is an internal act taken by the Registry of the Commission’s Directorate-General for Competition when it assigns a case number, the sole scope of which is to store documents. The initiation of proceedings corresponds to the date on which the Commission adopts a decision under Article 2 of Regulation No 773/2004 with a view to taking a decision under Chapter III of Regulation No 1/2003.
89 That said, the Commission submits, in the first place, that the appellant’s argument that, in the judgment under appeal, the General Court drew a distinction between two stages, the one predating the opening of a formal investigation and the one subsequent to such an opening, is based on a misreading of that judgment. The appellant is confusing the opening of the investigation and the initiation of proceedings. The judgment under appeal concerns only the obligation to apply Article 19 of Regulation No 1/2003 before the opening of an investigation and not, during the longer period, ending with the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004.
90 In any event, the segmentation of the procedure into two phases, before and after the opening of an investigation, would not give rise to ‘irresolvable problems of definition and border’. On the contrary, the date of the first use by the Commission of its investigative powers is an objective criterion which is easily identifiable.
91 In the second place, contrary to what the appellant claims, the distinction drawn by the General Court between those two stages of the procedure finds support in the case-law of the Court of Justice. It is apparent from the case-law cited in paragraph 191 of the judgment under appeal that the opening of an investigation corresponds to the date on which the Commission makes use, for the first time, of its powers of investigation. The General Court’s approach is confirmed by the wording of Article 19 of Regulation No 1/2003, according to which an ‘interview’ within the meaning of that article must be for the purpose of ‘collecting information relating to the subject matter of an investigation’ which, by definition, must have been initiated beforehand. As confirmed by the travaux préparatoires for that regulation, that provision constitutes a legal basis authorising the recording of oral statements ‘in the context of an investigation’ for the purpose of presenting them not as mere indicia, but as ‘evidence’.
92 The Commission adds, first, that it is irrelevant that it maintained before the General Court that the minutes of the interviews with suppliers constituted recordings under Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, since the General Court did not rule on that argument.
93 Secondly, the distinction drawn by the General Court between the stage of the procedure prior to the first use of the Commission’s powers of investigation and the stage subsequent to such use is not comparable to the distinction between formal and informal interviews rejected by the Court of Justice in the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632). In the case which gave rise to that judgment, the meeting in respect of which the Court of Justice concluded that the recording obligation applied had taken place after the adoption of inspection decisions. It therefore concerned an investigation which was already open and the collection of evidence which could be incriminating or exculpatory. In the present case, by contrast, the interviews with the suppliers took place before the adoption of the decision at issue or any other measure of inquiry. Those interviews therefore concerned only the collecting of indicia.
94 In the third place, the appellant’s assertion that the lack of procedural rules governing the collection of oral statements prior to an inspection prevents the General Court from exercising its power of judicial review of the proportionality and regularity of an inspection is contradicted by the review of the indicia carried out in the present case by the General Court, which led to the partial annulment of the decision at issue. Furthermore, even where oral testimony has not been recorded, the General Court has the possibility of hearing witnesses, under Article 94 of its Rules of Procedure.
95 Applying the procedural rules of Regulations No 1/2003 and No 773/2004 prior to the opening of the investigation would prejudice the Commission’s implementation of competition law, by preventing it from collecting and using indicia received orally. Preventing the Commission from gathering indicia in oral form would compromise the effectiveness of the investigations by delaying the date of inspections.
96 The Commission adds that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (judgment of26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65). In addition, in order to assess the probative value of evidence, regard should be had to the credibility of the account it contains and, in particular, to its origin, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, it appears to be sound and reliable (order of 12 June 2019, OY v Commission, C‑816/18 P, not published, EU:C:2019:486, paragraph 6). Those principles apply a fortiori to indicia whose probative value is, by definition, lower.
97 In the fourth place, the Commission maintains, first, that it is irrelevant that, in its 2006 Leniency Notice, the Commission intended to record, pursuant to Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, oral leniency applications made before the first use of its investigative powers.
98 Second, the appellant’s argument that the judgment under appeal allows the Commission to carry out investigations outside any legal framework before the opening of the formal investigation is based on a misreading of that judgment. First, the judgment under appeal concerns only the period up to the first use by the Commission of its powers of investigation and not the period up to the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004. Second, to make the indicia subject to a lesser degree of formality than the evidence makes it possible to reconcile, on the one hand, the need for speed which guides the adoption of inspection decisions and the effectiveness of the Commission’s investigation and, on the other hand, the safeguarding of the rights of defence of the undertakings concerned.
99 Thirdly, subjecting the indicia to a lesser degree of formality than the evidence does not undermine the effectiveness of the investigations. A material element which does not comply with the procedural rules of Regulations No 1/2003 and No 773/2004 could still be used to establish an infringement even if its probative value as evidence is reduced.
100 In the fifth place, the Commission states that it was only for the sake of completeness that the General Court concluded, in paragraph 201 of the judgment under appeal, that the detection by the Commission of the unlawful practices and the exercise of its investigative powers would be seriously undermined if it had to be required to record every oral statement before an investigation was opened.
101 By the second ground of appeal, the appellant complains, in essence, that the General Court erred in law, in paragraph 190 of the judgment under appeal, in finding that the Commission is not required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 before it has formally opened an investigation and made use of the powers of investigation conferred on it in particular by Articles 18 to 20 of Regulation No 1/2003.
102 It should be borne in mind in that regard that, in accordance with settled case-law, the interpretation of a provision of EU law requires account to be taken not only of its wording but also of its surrounding context and the objectives and purpose pursued by the act of which it forms part (judgment of 1 August 2022, HOLD Alapkezelő, C‑352/20, EU:C:2022:606, paragraph 42 and the case-law cited).
103 In the first place, it is apparent from the very wording of Article 19(1) of Regulation No 1/2003 that that regulation is intended to apply to any interview involving the collection of information relating to the subject matter of an investigation (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 84).
104 Article 3 of Regulation No 773/2004, which makes interviews based on Article 19(1) of Regulation No 1/2003 subject to compliance with certain procedural rules, does not specify the scope of the latter provision.
105 It must be borne in mind that the Court of Justice has held that, under Article 19(1) of Regulation No 1/2003 and Article 3(3) of Regulation No 773/2004, the Commission is required to record, in a form of its choosing, any interview which it conducts, under Article 19 of Regulation No 1/2003, in order to collect information relating to the subject matter of an investigation (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 90 and 91).
106 Accordingly, it is important to note that a distinction must be drawn on the basis of the subject matter of the interviews carried out by the Commission, and that only those seeking to collect information relating to the subject matter of a Commission investigation fall within the scope of Article 19(1) of Regulation No 1/2003 and, therefore, the obligation to record.
107 That said, there is nothing in the wording of Article 19(1) of Regulation No 1/2003 or Article 3 of Regulation No 773/2004 to suggest that the application of that recording obligation is contingent on whether the interview conducted by the Commission took place before the formal opening of an investigation in order to collect indicia of an infringement, or afterwards, for the purpose of gathering evidence of an infringement.
108 Those provisions do not in any way make the application of the obligation to record contingent on whether the information constituting its subject matter may be categorised as indicia or evidence. On the contrary, because of the generic nature of the term ‘information’ in Article 19(1) of Regulation No 1/2003, it must be held that that provision applies without distinction to each of those categories.
109 It is true that the concepts of ‘indicia’ and ‘evidence’ must not be conflated since, by their very nature and unlike evidence, indicia cannot suffice to establish a given fact.
110 The fact remains, however, that the classification of indicia or evidence depends not on a specific stage of the procedure, but on the probative value of the information concerned, since sufficiently serious and convergent indicia, gathered together as a ‘bundle’, can themselves prove an infringement and be used in the Commission’s final decision adopted on the basis of Article 101 TFEU (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47).
111 Therefore, as the Advocate General observed in point 141 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), the obligation to record interviews cannot depend on the categorisation of the information collected as indicia or evidence, since the probative value of that information can be assessed by the Commission only at the end of those interviews, during the subsequent stages of the procedure.
112 Furthermore, nor do Article 19(1) of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 provide that the application of the obligation to record depends on the stage of the procedure at which the interviews are conducted. It is true that Article 19(1) of Regulation No 1/2003 provides that interviews based on that provision are those conducted for the purpose of collecting information relating to the subject matter of an investigation, which presupposes that an investigation is ongoing. Yet it is not apparent from that provision that those interviews must take place after the formal opening of an investigation, held by the General Court in paragraph 190 of the judgment under appeal to be the moment when the Commission adopts a measure involving an accusation of the commission of an infringement.
113 In the second place, as regards the context of Article 19(1) of Regulation No 1/2003, it should be noted, first, that that article appears in Chapter V of that regulation, concerning the Commission’s powers of investigation. However, the application of the provisions of that chapter is not necessarily subject to the adoption, by that institution, of a measure involving the accusation of the commission of an infringement.
114 Thus, under Article 17 of that regulation, the Commission may conduct sectoral inquiries, which do not require prior adoption of such measures in respect of undertakings.
115 It should also be noted that Article 2(3) of Regulation No 773/2004, under which ‘the Commission may exercise its powers of investigation pursuant to Chapter V of Regulation … No 1/2003 before initiating proceedings’ supports the interpretation that the provisions relating to the Commission’s powers of investigation listed in that chapter - including Article 19 - may apply before an investigation has been formally initiated, contrary to what is stated in paragraph 193 of the judgment under appeal.
116 It is true that, in the cases which gave rise to the judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 182), and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 38), cited in paragraph 191 of the judgment under appeal, the Court of Justice identified the starting point of the preliminary investigation conducted by the Commission in the field of competition as being the date on which that institution, exercising the powers conferred on it by the EU legislature, takes measures involving an accusation of the commission of an infringement and having significant implications for the situation of the undertakings suspected.
117 However, the cases giving rise to those judgments concerned the determination of the starting point of the administrative procedure for the purpose of verifying whether the Commission complied with the principle that proceedings must be concluded within a reasonable time. That verification requires an examination of whether that institution acted diligently from the date on which it informed the undertaking suspected of having committed an infringement of EU competition law of the existence of an investigation.
118 Nonetheless, that date cannot be taken into consideration in order to determine the starting point from which the Commission is required to comply with the obligation to record interviews resulting from the combined provisions of Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004. As observed by the Advocate General in point 150 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), an undertaking may be the subject of statements made by third parties obtained during such interviews, without being aware of them. Therefore, to take that date into consideration would be tantamount to postponing the application of the recording obligation and the procedural guarantees attaching thereto, laid down in those provisions for the benefit of the third parties interviewed and the undertaking suspected, until the Commission adopts a measure informing that undertaking of the existence of suspicions concerning it. As a result of that postponement, interviews with third parties carried out prior to such a measure would be excluded from the scope of the obligation to record interviews and the procedural safeguards applicable to them.
119 In the third and last place, as regards the purpose of Regulation No 1/2003, it is apparent from recital 25 of that regulation that the detection of infringements of the competition rules is becoming increasingly difficult, since Article 19(1) of Regulation No 1/2003 seeks to supplement the Commission’s powers of investigation by, inter alia, allowing it to interview any person who may be in possession of useful information and to record its statements (see, to that effect, judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 85). The expression ‘detection of infringements’ in that recital supports the interpretation that interviews conducted by the Commission, at a preliminary stage for the purpose of gathering indicia relating to the subject matter of an investigation also fall within the scope of Article 19(1) of Regulation No 1/2003.
120 It should also be noted that, under Article 3(3) of Regulation No 773/2004, the Commission may record interviews in any form. The Commission cannot therefore validly maintain that imposing an obligation to record on it prevents it from gathering and using indicia where they can only be in oral form and would undermine the effectiveness of the investigations by delaying the date of the inspection. Similarly, nor can the Commission maintain that such an obligation has a deterrent effect since it is able to protect the identity of the persons interviewed.
121 In those circumstances, it must be held that the General Court erred in law in holding, in paragraph 190 of the judgment under appeal, that it was necessary to exclude from the scope of Regulation No 1/2003 those interviews in the course of which indicia were collected that subsequently served as the basis for a decision ordering an inspection of an undertaking, on the ground that no investigation within the meaning of Chapter V of that regulation was then opened, since the Commission did not adopt a measure involving an accusation with regard to that undertaking of having committed an infringement. In order to determine whether those interviews fell within that scope, the General Court should have examined whether they were intended to collect information relating to the subject matter of an investigation, taking into account their content and context.
122 In the present case, as is apparent from paragraph 202 of the judgment under appeal, the General Court held that the indicia obtained through interviews with suppliers could not be rejected as vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, in particular because those interviews took place before the opening of an investigation under Regulation No 1/2003 and they did not involve, with respect to the appellants and a fortiori in respect of the suppliers, any accusation whatsoever of the commission of an infringement.
123 As observed by the Advocate General in point 155 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), suffice it to observe in that regard that, when the Commission conducts interviews, the subject matter of which is defined in advance and whose purpose is openly to obtain information on the functioning of a given market and the conduct of operators on that market with a view to detecting possible unlawful conduct or substantiating its suspicions as to the existence of such conduct, the Commission exercises its power to gather statements under Article 19 of Regulation No 1/2003.
124 Consequently, the interviews with suppliers fell within the scope of Article 19(1) of Regulation No 1/2003 and the Commission was required to record those declarations in accordance with Article 3 of Regulation No 773/2004.
125 It follows that the General Court erred in law in finding, in paragraph 202 of the judgment under appeal, that the obligation to record, provided for in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, did not apply to interviews with suppliers and that the indicia obtained through those interviews were not vitiated by a procedural irregularity.
126 It follows from all the foregoing that the second ground of appeal is well founded and that, consequently, the appeal must be upheld and point 2 of the operative part of the judgment under appeal set aside, without its being necessary to rule on the third ground of appeal. Consequently, point 3 of the operative part of the judgment under appeal, relating to costs, must also be set aside.
127 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the Court sets aside the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
128 That is so in the present case.
129 It is therefore necessary to examine the complaint, put forward by the appellant before the General Court in the context of its plea relating to the infringement of the right to the inviolability of the home, alleging, in essence, that the indicia obtained through interviews with suppliers must be rejected because of the Commission’s failure to comply with Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.
130 In support of that complaint, the appellant submits that the minutes of the interviews with suppliers were not recordings complying with the requirements of those provisions, but rather the Commission’s unilateral reconstructions of its exchanges with suppliers.
131 The Commission contends that it fulfilled its obligation to record by drawing up exhaustive minutes that faithfully reflected the content of the suppliers’ statements and placing them in the file under an official identification number. That type of minutes is one of the forms of recording which Article 3(3) of Regulation No 773/2004 allows the Commission to use, in the same way as it may use an audio or audiovisual recording or a verbatim retranscription.
132 In that regard, it should be noted that the first sentence of Article 3(3) of Regulation No 773/2004, which states that the Commission ‘may record the statements made by the persons interviewed in any form’, implies that, if the Commission decides, with the consent of the person interviewed, to conduct an interview on the basis of Article 19(1) of Regulation No 1/2003, it must record the interview in full, without prejudice to the fact that the Commission is free to decide on the type of recording (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 90).
133 In addition, it is apparent from the second and third sentences of Article 3(3) of Regulation No 773/2004 that the Commission must make a copy of the recording available to the person interviewed for approval and that, where necessary, it must set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.
134 In the present case, the Commission has not alleged, still less proved, that it made the minutes which it had drawn up available to suppliers for approval.
135 The Commission’s obligation to make a copy of the recording available to the person interviewed for approval, provided for in Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, is intended, in particular, to ensure the authenticity of the statements made by the person interviewed, by ensuring that those statements must actually be attributed to him or her and that their content faithfully and fully reflects those statements and not the Commission’s interpretation of them.
136 Therefore, indicia obtained from a statement gathered by the Commission, without compliance with that requirement, imposed by Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, must be regarded as inadmissible and therefore be disregarded.
137 Thus, those purely internal minutes cannot be regarded as satisfying the requirements of Article 3(3) of Regulation No 773/2004, which applies to interviews falling within the scope of Article 19 of Regulation No 1/2003.
138 That finding cannot be invalidated by the Commission’s arguments, summarised in paragraph 96 of the present judgment, based on paragraphs 65 to 69 of the judgment of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773).
139 It is true that the Court of Justice has held that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced lies in its credibility and that, consequently, the probative value of evidence must be assessed as a whole, so that raising mere unsubstantiated doubts as to the authenticity of evidence is not sufficient to undermine its credibility (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 65 to 69).
140 However, in the case which gave rise to that judgment, the evidence whose authenticity was called into question was an internal email of an undertaking and not the recording of a statement collected by the Commission vitiated by an infringement of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004.
141 Thus, the principle of the unfettered assessment of evidence cannot be relied on in order to avoid the procedural rules applicable to the recording of statements obtained by the Commission under Article 19 of Regulation No 1/2003. In that regard, it should be noted that the finding of an irregularity in the collection of indicia, in the light of Article 19 of Regulation No 1/2003, read in conjunction with Article 3(3) of Regulation No 773/2004, lies in the fact that the Commission may not use that evidence in the subsequent stages of the procedure (see, by analogy, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 45 and the case-law cited).
142 In the present case, since, as observed by the Advocate General in point 208 of his Opinion in Les Mousquetaires and ITM Entreprises v Commission (C‑682/20 P, EU:C:2022:578), the information obtained through the interviews with suppliers constituted the essential elements of the indicia on which the decision at issue is based and is vitiated by a procedural irregularity on the ground of failure to comply with the obligation to record provided for in Article 3 of Regulation No 773/2004, it must be held that, on the date of adoption of the decision at issue, the Commission did not have in its possession sufficiently serious indicia that it was entitled to use and that justified the presumptions set out in Article 1(a) of that decision. In the light of all the foregoing considerations, that decision must be annulled in its entirety.
143 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
144 Under Article 138(1) of those rules, applicable 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. Since the appellant has applied for costs and the Commission has been unsuccessful, the Commission must be ordered to bear its own costs and to pay those incurred by the appellant in the present appeal. Furthermore, since the decision at issue is annulled, the Commission is ordered to pay all the costs incurred by the appellant in the proceedings at first instance.
145 Under Article 184(4) of the Rules of Procedure of the Court of Justice, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless they participated in the written or oral part of the proceedings before the Court of Justice. Where that intervener takes part in the proceedings, the Court may decide that that party shall bear its own costs. Since the Council, intervener at first instance, participated in the written and oral part of the procedure before the Court, it must be ordered to bear its own costs relating both to the appeal proceedings and to the proceedings at first instance.