OPINION OF ADVOCATE GENERAL
WAHL
delivered on 15 October 2015 (1)
Case C‑268/14 P
Italmobiliare SpA
v
European Commission
(Appeal — Markets for cement and related products — Article 18(3) of Council Regulation (EC) No 1/2003 — Commission’s powers to request information — Addressee of a request for information —Proportionality — Statement of reasons — Right to be heard)
1. What are the conditions for, and the limits to, the Commission’s powers to require, by way of decision, undertakings to supply information, in the context of an investigation relating to possible breaches of EU competition rules?
2. These are, in essence, the key issues raised by the appeal lodged by Italmobiliare SpA (‘Italmobiliare’ or ‘the appellant’) against the judgment of the General Court in which the latter dismissed the action for annulment directed against a Commission decision, adopted pursuant to Article 18(3) of Regulation (EC) No 1/2003, (2) requesting that company to provide a considerable amount of information.
3. Largely similar issues are also raised by three other appeals, lodged by other companies active in the cement market, against three judgments of the General Court in which that court also dismissed, for the most part, their challenges to Commission decisions equivalent to the one challenged by Italmobiliare. In those other three proceedings too, I will deliver my Opinion today. (3) The present Opinion should thus be read together with those Opinions.
I – Legal framework
4. Recital 23 in the preamble to Regulation No 1/2003 states:
‘The Commission should be empowered throughout the Community to require such information to be supplied as is necessary to detect any agreement, decision or concerted practice prohibited by [Article 101 TFEU] or any abuse of a dominant position prohibited by [Article 102 TFEU]. When complying with a decision of the Commission, undertakings cannot be forced to admit that they have committed an infringement, but they are in any event obliged to answer factual questions and to provide documents, even if this information may be used to establish against them or against another undertaking the existence of an infringement.’
5. Article 18 (‘Requests for information’) of Regulation No 1/2003, in the relevant part, provides:
‘1. In order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information.
2. When sending a simple request for information to an undertaking or association of undertakings, the Commission shall state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which the information is to be provided, and the penalties provided for in Article 23 for supplying incorrect or misleading information.
3. Where the Commission requires undertakings and associations of undertakings to supply information by decision, it shall state the legal basis and the purpose of the request, specify what information is required and fix the time-limit within which it is to be provided. It shall also indicate the penalties provided for in Article 23 and indicate or impose the penalties provided for in Article 24. It shall further indicate the right to have the decision reviewed by the Court of Justice.
…’
II – Background to the proceedings
6. In 2008 and 2009, the Commission — acting under Article 20 of Regulation No 1/2003 — carried out a number of inspections at the premises of several undertakings active in the cement industry. These inspections included the premises of Italcementi Fabbriche Riunite Cemento SpA (‘Italcementi’), Ciments français SA, Ciment Calcia SA and Ciment Belges SA, companies which, according to the judgment under appeal, are controlled directly or indirectly by the appellant. Those inspections were followed, in 2009 and 2010, by a number of requests for information under Article 18(2) of Regulation No 1/2003 addressed — among others — to Italcementi.
7. By letter of 4 November 2010, the Commission notified Italcementi that it intended to send the latter a decision requesting information under Article 18(3) of Regulation No 1/2003 and forwarded the draft questionnaire it planned to annex to that decision. Italcementi submitted its observations to the Commission on 15 November and 1 December 2010.
8. On 6 December 2010, the Commission notified the appellant that it had decided to initiate proceedings, under Article 11(6) of Regulation No 1/2003 and Article 2 of Regulation (EC) No 773/2004, (4) against it as well as against seven other companies for suspected infringements of Article 101 TFEU involving restrictions on imports in the EEA coming from countries outside the EEA, market sharing, price coordination and related anti-competitive practices in the cement market and related product markets.
9. On 30 March 2011, the Commission adopted Decision C(2011) 2364 final in proceedings pursuant to Article 18(3) of Regulation No 1/2003 (Case 39520 — Cement and related products) (‘the contested decision’).
10. In the contested decision, the Commission stated that, under Article 18 of Regulation No 1/2003, in order to carry out its duties under that regulation, it may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information (recital 3 of contested decision). After pointing out that Italcementi had been informed of the Commission’s intention of adopting a decision under Article 18(3) of Regulation No 1/2003 and that the former had submitted its observations on the draft questionnaire (recitals 4 and 5 of the contested decision), the Commission, by decision, required the appellant and its subsidiaries to answer the questionnaire set out in Annex I. Notably, Annex I comprised 78 pages and 10 sets of questions. The instructions concerning the answers to that questionnaire were set out in Annex II, while the answer templates were set out in Annex III.
11. The Commission also drew attention to the alleged infringements (recital 2 of the contested decision), which it described as follows: ‘[t]he alleged infringements concern restrictions on trade flows in the European Economic Area (EEA), including restrictions on imports in the EEA coming from countries outside the EEA, market-sharing, price coordination and related anti-competitive practices in the cement market and related product markets’. Referring to the nature and volume of the information requested, as well as the seriousness of the alleged infringements of the competition rules, the Commission considered it appropriate to give the appellant 12 weeks to reply to the request for information.
12. The operative part of the contested decision reads as follows:
‘Article 1
Italmobiliare SpA, together with its subsidiaries located in the European Union under its direct or indirect control, shall provide the information referred to in Annex I to this decision, in the form requested in Annexes II and III thereto, no later than twelve weeks from the date of notification of this decision. All annexes form an integral part of this decision.
Article 2
This decision is addressed to Italmobiliare SpA together with its subsidiaries located in the European Union under its direct or indirect control.’
13. On 27 June and 11 July 2011, the appellant provided its answers to the questionnaire sent by the Commission.
III – Procedure before the General Court and the judgment under appeal
14. By application lodged on 8 June 2011, Italmobiliare requested the General Court to annul the contested decision.
15. By judgment of the 14 March 2014 in Italmobiliare v Commission, T‑305/11 (the ‘judgment under appeal’), (5) the General Court dismissed the action and ordered Italmobiliare to pay the costs.
IV – Procedure before the Court and forms of order sought
16. In its appeal lodged with the Court on 26 May 2014, Italmobiliare claims that the Court should:
– set aside the judgment in Case T‑305/11 and annul the contested decision;
– order the necessary and appropriate measures of organisation of procedure or measures of inquiry provided in Article 62 and 64 of the Rules of Procedure of the Court;
– order the Commission to pay the costs at first instance and on appeal;
– in the alternative, refer the case back to the General Court for a new decision.
17. The Commission, for its part, contends that the Court should:
– dismiss the appeal;
– in the alternative, so far as may be necessary, confirm the lawfulness of the contested decision;
– order Italmobiliare to pay the costs.
V – Assessment of the grounds of appeal
18. Italmobiliare submits five grounds of appeal. Broadly speaking, those grounds of appeal relate to whether the General Court correctly interpreted the Commission’s powers to request information under Regulation No 1/2003.
19. The key legislative provisions and case-law relating to the Commission’s powers to request information are dealt with in my Opinion in HeidelbergCement v Commission, (6) also delivered today.
20. It is against that background that I shall assess the grounds of appeal put forward by the appellant.
A – Addressee of the decision
1. Arguments of the parties
21. By its first ground of appeal, Italmobiliare submits that the General Court misinterpreted and misapplied Article 18 of Regulation No 1/2003 by considering that the Commission could, in the case under consideration, send a request for information to a mere financial holding company, whose control over Italcementi had not been demonstrated. In addition, the appellant alleges infringement of the principle of legitimate expectations, because, in previous communications, the Commission had stated that Italcementi would be the addressee of a decision pursuant to Article 18(3). Finally, the appellant alleges breach of the principle of non-discrimination: it was the only financial holding company, in the investigation at hand, to which a decision under Article 18(3) was addressed, despite other corporate groups subject to the same investigation having a financial holding company at the apex of their corporate structure.
22. The Commission contends that the first part of this ground of appeal is inadmissible because it raises questions of fact and that, in any event, Article 18(3) of Regulation No 1/2003 empowers the Commission to request information from anyone that it reasonably believes could be in possession of relevant information. The Commission adds that Italmobiliaire could draw no certain conclusions from the communication of the draft questionnaire to Italcementi and that it made no clear and unconditional assurance to Italcementi regarding the addressee of a future decision.
2. Assessment
23. By its first ground of appeal, the appellant complains about three different alleged errors committed by the General Court when holding that the contested decision could lawfully be addressed to the appellant.
24. Before dealing with the most complex part of this ground — that is to say, whether an undertaking may be the addressee of a request for information that primarily concerns the activity of another undertaking in which it holds shares, I would like to address the other parts of the first ground of appeal.
25. To begin with, I am of the view that the General Court made no error of law when holding that the appellant did not receive precise, unconditional and consistent assurances from the Commission that a future decision under Article 18(3) of Regulation No 1/2003 would be addressed to Italcementi. First, the questionnaire sent to Italcementi on 4 November 2010 was only a draft, produced by the Commission services, meant to allow the Commission to receive comments with a view to improving the text of the final questionnaire. A mere consultation cannot, by itself, bind the Commission as regards the adoption of a binding decision pursuant to Article 18(3). (7) In any event, the text of the draft questionnaire could not be taken to exclude the possibility that other companies, belonging to the same corporate group or having some sort of corporate relation to Italcementi, could be the addressee of a decision under Article 18(3). Second, the fact that the appellant was the addressee of the decision to open the proceedings, adopted only a few days after the draft questionnaire had been sent to Italcementi, excludes the possibility that any assurances that the appellant may claim to have received from the Commission on this point might be ‘precise, unconditional and consistent’ within the meaning of the Court’s case-law on legitimate expectations. (8)
26. As regards the alleged discrimination, I do not believe that this complaint has any merit. As I shall explain in the following paragraphs, Article 18 of Regulation No 1/2003 empowers the Commission to request information from any undertaking which it believes is in possession of information relevant to its investigations. Thus, the nature of the activities carried out by an undertaking to which a request for information is addressed is, in principle, irrelevant. Accordingly, whether Italmobiliare was treated differently from other undertakings which also were financial holding companies is beside the point. In fact, it cannot be excluded that, in terms of being in possession of the information sought by the Commission, those companies were in a position different from that of Italmobiliare. There is nothing in the files which could have allowed the General Court actually to compare Italmobiliare with those companies from that angle.
27. That said, I will now examine what constitutes, in my view, the key issue raised by the first ground of appeal: whether the Commission was entitled, in the case under consideration, to address a decision requesting information to a company which held shares in the companies suspected of having infringed Article 101 TFEU.
28. This question — of law and thus admissible on appeal — stems from the fact that the appellant contends that, when the contested decision was adopted, it acted merely as a ‘financial holding company’. Neither the contested decision, nor the judgment under appeal, provides, in the view of the appellant, any proof that the latter exercised control over the companies belonging to the Italcementi group. Failing any such proof, the appellant considers that it was not reasonable to believe it to be in possession of any information of relevance to the investigation.
29. In that regard, it should be borne in mind that, under Article 18 of Regulation No 1/2003, the Commission may address a request for information to any undertaking which might hold relevant information, regardless of its involvement in the suspected infringement.
30. The Commission enjoys wide discretion in the exercise of the powers conferred upon it by Regulation No 1/2003, including those pursuant to Article 18 of that regulation. That discretion is, however, not unfettered. Indeed, in the exercise of its powers of investigation, the Commission is required to observe the general principles of law and the fundamental rights recognised in EU law. (9) These limits do not only concern, in my view, aspects such as the quantity of information requested or the period of time during which that information must be supplied, but also the choice of the undertaking to which a request for information is to be addressed.
31. It seems to me that three general principles of law are particularly relevant in the case under consideration.
32. First, according to well-established case-law, the principle of proportionality is a general principle of EU law which requires that measures implemented through its provisions be appropriate to attain the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary to achieve them. (10) When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (11) In the context of EU competition rules, the Court has already held that an investigation is disproportionate when it constitutes an excessive and, thus, intolerable interference with the rights of the undertakings concerned. (12)
33. Second, it is clear from the case-law of the Court that the principle of legal certainty, which constitutes a general principle of EU law, requires that any EU act, in particular when it imposes or permits the imposition of sanctions, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly. (13)
34. Third, it is settled case-law that the Commission is required, during the administrative procedures relating to suspected violations of the EU competition rules, to respect the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union. (14) That right includes, among others, the duty of the EU administration to ‘give reasons for its decisions’.
35. I take the view that, in the case under consideration, the Commission decision raises issues relating to those three general principles.
36. First, as regards the principle of proportionality, I observe that it is undisputed that Italmobiliare was not active in the markets which were the object of the investigation. It is likewise not contested that the Commission had a very precise idea of the identity of the undertakings which, within the corporate group of Italmobiliare, were suspected of having infringed the EU competition rules. In fact, four of those companies were subject to on-the-spot inspections in November 2008. Moreover, Italcementi was the addressee of a number of requests for information during 2009 and 2010, and of the draft questionnaire sent on 4 November 2010. Importantly, the contested decision itself did not focus on the activities of Italmobiliare, but concerned primarily the activities of those other undertakings.
37. Even assuming that Italmobiliare had in its possession the information sought, or could at least have had access to it, it seems to me that the information supplied would in any event have come from a source which could only be regarded as ‘second best’. In other words, the information requested would, at any rate, come from an undertaking which was not that to which that information pertained and which, presumably, had compiled it.
38. In those circumstances, I find it puzzling that the Commission addressed the contested decision not to those companies, which — I repeat — were well known, but to the appellant. It seems obvious that the information could more easily and readily have been provided by those companies.
39. Be that as it may, if the reason for addressing the contested decision to the appellant was to obtain the data from all the undertakings belonging to Italmobiliare’s corporate group consolidated into a single set of information, I would not find that reason valid. As I have explained in detail in my Opinion in HeidelbergCement, Article 18(3) of Regulation No 1/2003 does not allow the Commission to require the addressee of a request for information to complete tasks which belong to the investigation of a case and, consequently, should in principle be carried out by the Commission’s staff. (15)
40. Furthermore, the appellant argues — to my mind, convincingly — that it cannot simply be assumed, as the Commission seems to do, that merely because of its shareholdings it had ‘control’ over those companies and that this, in turn, meant that it was in possession of the information sought or could easily and readily obtain it. In any event, even if it were to be assumed that the appellant might, by virtue of the existing corporate links to those companies, have access to that information, it is hardly disputable that the gathering, formatting and submission of the information requested became more complicated, time-consuming and costly. At the same time, the exercise of the rights of defence by Italcementi, including the right to avoid self-incrimination, becomes more difficult, for those rights have to be exercised through ‘the filter’ of Italmobiliare.
41. This is especially true in the case under consideration, since the contested decision included an extraordinarily large number of questions, which concerned very diverse topics and required a high level of detail in the response. (16) In my view, the Commission could not reasonably expect the appellant — a mere financial holding company — to be in possession of all that information already. Nor could it expect the staff of a financial holding company to be able to marshal and submit that information as efficiently and quickly as the staff of the actual companies to which that information belonged could have done.
42. All the more so because three previous requests for information under Article 18(2) of Regulation No 1/2003 had been addressed to Italcementi, which duly replied to them. The General Court held that many questions in the contested decision concerned the same information which had been requested previously under Article 18(2). (17) I find it counterintuitive that a decision which, in large part, merely asks for information already provided to be resubmitted, with a view to consolidating that information into a different format (18) or to enriching it with additional details, (19) not be addressed to the same undertaking to which the previous requests were addressed.
43. Moreover, because of the particularly complex and strict format required for the submission of the information requested, the costs entailed by the contested decision were certainly significant. (20) It is hard to see any valid reason why those costs had to be borne by only one of the shareholders of the companies targeted by the investigation.
44. Against that background, it seems to me that the adoption of a decision addressed to the companies targeted by the investigation could be regarded as a less onerous measure, in particular for the appellant.
45. Second, as regards the principle of legal certainty, I am of the view that the fact that the Commission did not take a clear and unambiguous stance regarding the undertakings which were the subject of the investigation — as illustrated in points 25 and 37 of this Opinion — was a fact that could generate uncertainty for the appellant.
46. It should also be noted, in that regard, that Article 1 of the contested decision states that ‘Italmobiliare Spa, together with its subsidiairies located in the European Union under direct or indirect control, shall provide the information …’. In addition, Article 2 of the same decision reads as follows: ‘[t]his decision is addressed to Italmobiliare Spa together with its subsidiaries located in the European Union under its direct or indirect control’. No explanation was however provided, by the Commission, as to how that concept of direct or indirect control was to be understood.
47. Clearly, those provisions cannot be taken to mean that the legal obligation to provide the requested information applied to any undertaking other than Italmobiliare: no such obligation (enforceable by means of financial penalties) can logically apply to undertakings which are not identified and are not easily identifiable. Yet, Italmobiliare was still required to provide information relating to undertakings of whose number and identity it could not be certain.
48. It is well known that the concept of ‘control’ under EU competition rules may, at times, be rather opaque. A concept of ‘control’ is used in the context of the EU rules applicable to merger control. (21) At the same time, in the context of proceedings relating to the application of Articles 101 and 102 TFEU, the concept of ‘single economic entity’ is often used. An expression of that is to be found in the abundant case-law of the EU Courts concerning the liability of parent companies for cartel-linked infringements committed by their subsidiaries; this case-law is also based on the idea that the former companies can exercise ‘control’ over the latter. In addition, there are national and supranational rules on accounting standards which lay down requirements that may impose an obligation to consolidate the accounts of different companies belonging to one corporate group.
49. Against that background, failing any express indication by the Commission as to how the appellant should have understood the reference to its ‘subsidiaries located in the European Union under its direct or indirect control’, I believe that the contested decision was capable of creating legal uncertainty for the appellant.
50. In the case under consideration, this was particularly problematic insofar as the appellant, as the addressee of the contested decision, was required to comply with that decision under the threat of the financial penalties provided for in Articles 23 and 24 of Regulation No 1/2003. A threat which was also emphasised in the text of the questionnaire attached to the contested decision, which stated that the information submitted could be considered incorrect or misleading even if simply not submitted in accordance with the definition and instructions provided for in Annexes II and III of the contested decision. (22)
51. Third, with regard to the right to good administration — to the extent that, in the case under consideration, it adds something to what follows directly from Article 296 TFEU — I would point out that the Commission gave no clear explanation of why the information was sought from the appellant and not directly from the companies targeted by the investigation. It was thus difficult, for Italmobiliare, to grasp the reasons for which the decision was addressed to it and not to the latter. This problem was exacerbated by the fact that the statement of reasons contained in the contested decision was vague and succinct. (23)
52. In the light of the foregoing, it is my opinion that the first part of the first ground of appeal is well founded, and the judgment under appeal ought accordingly to be set aside.
B – Purpose of the request for information
1. Arguments of the parties
53. By its second ground of appeal, Italmobiliare submits that the General Court erred in law in its interpretation of Article 296 TFEU as regards the statement of reasons required in a decision issued under Article 18(3) of Regulation No 1/2003. Moreover, the appellant criticises the General Court for dismissing without adequate reasons its argument concerning the error made by the Commission by adopting a binding request for information under Article 18(3), instead of a simple request under paragraph 2 of the same provision.
54. The Commission contends that this ground of appeal should be rejected. The Commission emphasises that the procedure was still at an early stage when the contested decision was adopted. A request for information cannot contain the level of detail required for decisions adopted at the end of the investigation. The Commission also adds that Article 18(3) of Regulation No 1/2003 does not require the Commission to explain the reasons for which it may choose to adopt a binding decision instead of issuing a simple request for information.
2. Assessment
55. At the outset, I would call to mind that, according to settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in a way that enables the persons concerned to ascertain the reasons for it and enables the EU Courts to review the legality of those reasons. The requirement to state reasons must be assessed by reference to all the circumstances of the case. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording, but also to its context and to all the legal rules governing the matter in question. (24)
56. With regard to decisions ordering an inspection under Article 20 of Regulation No 1/2003, the Court has recently confirmed that the Commission is not required to communicate to the addressees of such decisions all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, provided it clearly indicates the presumed facts which it intends to investigate. Although the Commission is obliged to indicate as precisely as possible the evidence sought and the matters to which the investigation relates, it is, on the other hand, not essential in a decision ordering an inspection to identify with exactness the relevant market, the legal nature of the presumed infringements or the period during which those infringements were committed, provided that the decision contains the essential elements already mentioned. Indeed, inspections usually take place at the beginning of an investigation and, consequently, the Commission still lacks, at that stage, precise information on those aspects. It is the very aim of an inspection to gather evidence relating to a suspected infringement so that the Commission is able to verify its suspicions and make a more specific legal assessment. (25)
57. These principles seem to me to be applicable — mutatis mutandis — to decisions requesting information under Article 18(3) of Regulation No 1/2003. Evidently, both types of measures pursue the same aim and consist in a fact-gathering exercise. Although not worded in identical terms, the relative resemblance of the two provisions would also seem to support a uniform reading of the two. (26)
58. Against that backdrop, the crucial issue is whether the General Court has correctly examined the adequacy of the statement of reasons contained in the contested decision. In other words, the question is as follows: taking into account the stage of the procedure at which the contested decision was adopted, is the statement of reasons in question sufficiently clear, on the one hand, to enable the addressee to exercise its rights of defence and assess its duty to cooperate with the Commission and, on the other hand, to permit the exercise of judicial review by the EU Courts?
59. That question should, in my view, be answered in the negative.
60. In paragraph 68 of the judgment under appeal, the General Court finds that the statement of reasons in the contested decision was drafted ‘in very general terms which would have benefited from greater detail and [warrant] criticism in that regard’. To my mind, that can hardly be contested: three important aspects of the statement of reasons lack, in fact, sufficient detail. I refer, in particular, to the description of the presumed infringements, the geographical scope thereof, and the products concerned by the infringements.
61. As concerns the presumed infringements, recital 2 of the contested decision states: ‘[t]he alleged infringements concern restrictions on trade flows …, including restrictions on imports …, market-sharing, price coordination and related anti-competitive practices’. This description of the possible infringements seem not only quite vague (‘restrictions on trade flows’, ‘including restrictions on imports’) but also all-encompassing (‘related anti-competitive practices’). The reference to ‘market sharing’ and ‘price-coordination’ — being so general — does little to delimit with more precision the nature of the conduct suspected by the Commission. Most cartels, in fact, include elements of market-sharing and price-fixing. In practice, the vast majority of the types of agreement prohibited by Article 101 TFEU seem to be caught by this description.
62. With regard to the geographic scope of the presumed infringements, the contested decision mentions restrictions on trade flows in the EEA, including restrictions on imports in the EEA coming from countries outside the EEA. It is true that the geographic component of the relevant market need not be defined in a decision under Article 18, (27) yet some reference to at least some of the countries affected ought to have been possible. In particular, it is not clear whether the market possibly affected is the entire EEA or only parts of it and, if so, which parts.
63. Lastly, the contested decision is even more elusive when it comes to explaining the products which are the subject-matter of the investigation. In practice, only cement is identified as a relevant product, since — for the rest — the decision refers to ‘[cement-]related product markets’. Again, this description is not only extremely vague (how closely ‘related’ to cement must the products be?), but potentially covers all the types of products in relation to which the appellant is active (as a seller or as a buyer).
64. According to the General Court, (28) the scarcity of details in the contested decision is partly alleviated by the fact that it expressly refers to the Commission’s decision to initiate proceedings, which included additional information on the geographic extent of the presumed infringements and the type of products covered.
65. The appellant disputes that the failures of the contested decision can be remedied by a mere reference to a previous decision and points out, in any event, that the decision to initiate proceedings is also affected by the same lack of detail.
66. In my view, EU acts imposing obligations that interfere with the private sphere of individuals or undertakings and that, if not complied with, carry the risk of hefty financial penalties, should, as a matter of principle, have a self-standing statement of reasons. (29) Indeed, it is important to enable those individuals or undertakings to grasp the reasons for such an act without an excessive interpretative effort, (30) so that they can exercise their rights effectively and in good time. This is especially true for acts which include express references to previous acts containing a different statement of reasons. Any meaningful difference between the two acts may be a source of uncertainty for the addressee.
67. Notwithstanding the above, I am of the view that, by way of exception, in the present case, the General Court was correct in stating that the statement of reasons in the contested decision may be read in conjunction with the statement of reasons included in the decision to initiate proceedings. The two decisions were adopted in the framework of the same investigation and obviously concern the same presumed infringements. They were also adopted within a short period of time. More importantly, there seems to be no meaningful difference between the statements of reasons included in the two decisions. Therefore, I take the view that, in the present case, the first decision could be regarded as ‘context’ of the second decision, which the addressee could not be unaware of. (31)
68. Nevertheless, if it is true that the first decision included more significant detail on the geographical scope of the presumed infringements (listing the Member States potentially affected), it was not equally precise as regards the nature of those infringements and the products covered. In particular, the explanation given of the concept of ‘cement and related products’ included in a footnote on page 4 of that decision covers a potentially very wide and disparate set of products.
69. That said, I am of the view that the fact that a statement of reasons may be too general or somewhat vague on certain aspects does not result in invalidity if the rest of the decision allows the addressee and the EU Courts to understand with sufficient precision what information the Commission seeks and the reasons for that. (32) Indeed, even if only indirectly or implicitly, the subject-matter of the questions posed may shed additional light on a statement of reasons which may have been drafted without the required precision. After all, very precise and focused questions inevitably reveal the scope of the Commission’s investigation. This seems to me particularly true for acts adopted at an early stage of the process, when the scope of the investigation is not entirely and finally set and, in fact, may need to be limited or expanded in the future, as a consequence of the information subsequently gathered.
70. In the present case, however, the opposite is actually true. The questions put to Italmobiliare are extraordinarily numerous and cover very diverse types of information. It is, to my mind, extremely difficult to identify a connecting thread between many of the questions included in the questionnaire. (33) Moreover, some of the questions do not seem to be fully in line with what was stated in the earlier decision to initiate proceedings: for example, questions 3 and 4 (which require a particularly significant amount of information over a 10-year period) are not limited to the Member States identified as possibly concerned by the decision to initiate proceedings.
71. Incidentally, if the connecting thread tying some of those questions together were to be a complete mapping of the undertaking’s revenue and cost structure, to enable the Commission to analyse it by econometric methods (comparing it with those of other companies active in the cement industry), it could be questioned whether such a broad and all-encompassing request for information is at all appropriate under Article 18. Unless the Commission is in possession of concrete indicia pointing to objectionable behaviour for which such an analysis could provide necessary support, such a request for information would seem more appropriate for a sectorial investigation under Article 17 of Regulation No 1/2003.
72. In these circumstances, I agree with the appellant that the purpose of the Commission’s request for information was insufficiently clear and unambiguous. It was consequently excessively difficult, for that undertaking, to understand the presumed infringements so as to assess the extent of its duty to cooperate with the Commission and, if necessary, exercise its rights of defence, for example by refusing to answer the questions which it deemed unlawful. All the more so since some questions concerned information which was not purely factual and included a value judgement, (34) and other questions were relatively vague. (35) That being so, in respect of those questions, the risk of providing self-incriminatory answers could not easily be ruled out by the appellant. (36)
73. That lack of detail cannot — contrary to the Commission’s claims — be justified by the fact that the contested decision was adopted at an early stage of the investigation. Indeed, that decision was issued almost three years after the investigation had begun. During that time, a number of inspections had taken place and very detailed requests for information had already been issued by the Commission and answered by the undertakings concerned. In fact, some months before the adoption of the contested decision, the Commission considered that it had gathered sufficient elements to initiate proceedings under Article 11(6) of Regulation No 1/2003 and Article 2 of Regulation No 773/2004. Those elements should have enabled the Commission to provide more detailed reasons in the contested decision.
74. I agree with the Commission that the amount of detail required in a statement of reasons depends, among other things, on the information which the Commission has in its possession when a decision under Article 18 is adopted. (37) Yet, to my mind, this necessarily implies that a statement of reasons which may be acceptable in respect of a decision adopted at the beginning of an investigation (i.e. a decision requiring an undertaking to submit to an inspection under Article 20, or the very first decision to request information under Article 18(3)) might not be equally acceptable as regards a decision adopted at a much later stage of the investigation, when the Commission has more extensive information on the presumed infringements.
75. In those circumstances, I find it inexcusable that, despite all the information already provided to the Commission over the previous years, and the additional efforts which the contested decision entailed, Italmobiliare was still left in the dark regarding the precise scope of the Commission’s investigation.
76. Furthermore, I believe that the appellant is right to argue that the exercise of judicial review by the EU Courts of the legality of the contested decision has been made significantly more difficult. As I have explained in more detail in my Opinion in HeidelbergCement, (38) given the scanty information on the presumed infringements contained in the contested decision (even when read against the background of the decision to open the proceedings), it becomes hard for the Court to verify the fulfilment of requirements of necessity and proportionality of the request. (39) As for the former element, the Court is supposed to assess whether the correlation between the putative infringement and the information requested is sufficiently close to justify the Commission’s request. With regard to the latter, the Court must determine whether or not the efforts required from an undertaking are justified in the public interest and not excessive.
77. For those reasons, I am of the view that the General Court has wrongly interpreted and applied Article 296 TFEU and Article 18(3) of Regulation No 1/2003 as regards the required statement of reasons in a decision to request information. The judgment under appeal must, thus, be quashed in so far as the General Court thereby held, for the reasons indicated in paragraphs 51 to 72 of that judgment, that the contested decision contained an adequate statement of reasons.
C – Sufficient indicia as to an infringement
1. Arguments of the parties
78. By its third ground of appeal, Italmobiliare criticises the General Court’s review of its plea alleging that the Commission had acted ultra vires by adopting a decision under Article 18(3) of Regulation No 1/2003. In the appellant’s view it is clear, because of the significant quantity and the vagueness of the information requested, that the Commission did not have sufficient indicia of an infringement of Article 101 TFEU when it issued the contested decision. The Commission should have thus acted under Article 17 of the same regulation. In addition, the appellant criticises the General Court for not ordering any measures of inquiry to verify whether the Commission was in possession of sufficient indicia to adopt a decision under Article 18(3).
79. The Commission considers that this ground of appeal is inadmissible and, in any event, unfounded.
2. Assessment
80. By this ground of appeal, Italmobiliare contends, in essence, that the Commission did not have sufficient grounds for suspecting an infringement and that the amount and type of information requested reveals that the Commission was conducting a ‘fishing expedition’.
81. I agree with the Commission that this ground of appeal is partly inadmissible and partly unfounded.
82. First, in that the appellant submits that the General Court erred in evaluating the elements put forward at first instance in support of its plea relating to an action ultra vires by the Commission, the appellant is essentially requiring the Court to carry out a new assessment of those elements. This is, however, not permissible on appeal.
83. Second, as regards the criticism of the General Court’s decision not to order ex officio measures of inquiry or of organisation of procedure so as to verify the actual existence of sufficient indicia of an infringement, that criticism too ought to be dismissed. It is established case-law that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case. (40) A fortiori, this principle is even more valid when it is a question of adopting measures of inquiry or of organisation of procedure ex officio. (41)
84. In the present case, it was open to the appellant to request the General Court to adopt any such measure with a view to verifying whether the Commission was in possession of sufficient indicia. In fact, in the ‘parallel’ case Cementos Portland Valderrivas v Commission, the General Court, faced with an express request from the applicant, ordered the Commission to produce the evidence in its possession so that it could satisfy itself that the contested decision was not arbitrary. (42)
85. Yet, in the present case the appellant did not submit such a request. Thus, I find it hardly objectionable that the General Court, considering the elements of a generic nature adduced by the appellant (an assessment which cannot be reviewed on appeal), and failing any specific request, decided that there was no need to investigate the matter further. (43)
D – Proportionality
1. Arguments of the parties
86. By its fourth ground of appeal, the appellant essentially submits that the General Court erred in interpreting and applying the principle of proportionality. In the appellant’s view, the General Court failed, on the one hand, to recognise the existence of less onerous measures to achieve the aim pursued (such as a sectorial investigation or a simple request for information) and, on the other hand, to censure the excessive and intolerable burden placed on the appellant by the contested decision.
87. The Commission contends that the General Court has correctly assessed the principle of proportionality in the case under consideration; the contested decision does not infringe that principle.
2. Assessment
88. This ground of appeal raises two different issues from the angle of proportionality. I shall examine them in turn.
a) Choice of the legal instrument
89. The first part of this ground of appeal, in substance, raises the issue of whether the Commission breached the principle of proportionality — as suggested by the appellant — by adopting a binding decision under Article 18(3) of Regulation No 1/2003, instead of issuing a simple request for information under the second paragraph of that provision or having recourse to a sectorial investigation pursuant to Article 17 of the same regulation.
90. I am not convinced by that view.
91. In the first place, as concerns sectorial investigations, I observe that the General Court did not find that the Commission lacked sufficient indicia to be entitled to send a request for information under Article 18(3) of Regulation No 1/2003. The criticism that the appellant raised on this point cannot be accepted, for the reasons explained above. (44) There is, accordingly, no basis to argue that the Commission could have, or should have, started a sectorial investigation under Article 17 of Regulation No 1/2003.
92. If the Commission was in possession of sufficient indicia indicating the possible existence of infringements of the EU competition rules (which it is not for this court to decide on appeal), Article 18 of Regulation No 1/2003 constitutes the correct legal basis to investigate the matter.
93. In the second place, as regards simple requests for information under Article 18(2) of Regulation No 1/2003, I would note the following. Most of the information requested in the contested decision consisted in data which the Commission had sought from all the undertakings suspected of taking part in the suspected infringement, with a view to making a comparison between that data. The Commission could make a meaningful comparison only if the information requested was provided at roughly the same time, and was accurate and complete. Errors or delays, even by a single respondent, would have meant that the comparison envisaged by the Commission would not have been feasible or, in any event, sufficiently reliable.
94. Under those circumstances, the Commission was entitled to consider that the adoption of a binding decision under Article 18(3) was the most appropriate method of ensuring that the information requested would be as complete and correct as possible, and would be submitted within the desired period of time.
95. The first part of this ground of appeal should therefore be rejected.
b) Proportionality sensu stricto
96. At the outset, I would call to mind that the Court has, on numerous occasions, stressed that the need to protect individuals against arbitrary or disproportionate intervention by public authorities in their private sphere, including when those authorities enforce competition rules, is a general principle of EU law. (45) In particular, a measure of investigation is disproportionate when it constitutes an excessive and, thus, intolerable interference with those rights. (46)
97. Obviously, there is no clear-cut test to determine whether a specific request for information addressed to a given undertaking is excessive or not. Only a case-by-case assessment which takes into account all the relevant circumstances can provide an answer to that question.
98. Two elements in particular should be weighed against each other to assess the proportionality of a specific request for information. On the one side of the scales lies the public interest which justifies the Commission’s investigation, and the necessity for that institution of receiving information enabling it to perform the tasks assigned to it by the Treaty. The more harmful a suspected infringement is to competition, the more the Commission ought to be entitled to expect an undertaking to make an effort to provide the information requested, in fulfilment of its duty of active cooperation. The other side of the scales consists of the workload generated for an undertaking by a request for information. The greater the workload generated, diverting the attention of the undertaking’s staff from their normal business tasks and adding extra costs, the more excessive that request for information might be considered.
99. In the case under consideration, the Commission argues that the appellant’s alleged conduct constitutes a very serious infringement of the EU competition rules. Despite the little information given on this matter in the contested decision, or in the decision to initiate proceedings, the Commission’s view that the consequences of the suspected infringements for European consumers could, if proven, be particularly serious can probably be shared. (47)
100. Notwithstanding that fact, the workload generated for the appellant by the contested decision (described as provoking a ‘particularly significant workload’ in the judgment under appeal) (48) appears excessively and unreasonably onerous.
101. It cannot be seriously disputed that the contested decision required the submission of an extraordinary quantity of data, which covered almost all economic activities of the appellant, in 12 Member States, over a decade.
102. Furthermore, the mere compilation of some of the questions asked by the Commission generated a considerable workload for the appellant, obliging it to review almost all economic transactions concluded by several companies forming part of its corporate group over the last 10 years, so as to extrapolate and consolidate the data requested.
103. Another reason for the significant workload generated by the contested decision lies in the format imposed by the Commission for the submissions of the information requested. Indeed, in the digital era, the fact that a request for information requires the submission of a very large amount of information may often be of secondary importance. In many cases, the workload generated by a request for information will mainly depend on the manner in which the Commission requires the addressee of that request to submit the information. In other words, the format imposed by the Commission for the information requested may frequently be what creates the greatest workload for an undertaking.
104. In that respect, I observe that Annex II (detailed instructions for answering the questionnaire) and Annex III (answer templates) to the contested decision together amount to almost 30 pages of extreme complexity. The format imposed was of the greatest strictness and the instructions exceptionally detailed.
105. Regarding the strictness of the model, I would stress that full compliance with the required format was ensured by an explicit threat of penalties. In the box at the beginning of the questionnaire, the Commission writes (in bold and underlined characters): ‘Please note that your reply may be considered incorrect or misleading if the following definitions and instructions are not respected.’
106. As regards the exceptionally detailed nature of the instructions, I would merely refer to the overly meticulous prescriptions concerning the responses which the Commission requested to be provided in an Excel file. The appellant could use only the templates included in Annex III, and was required to follow strictly the instructions regarding, among other things, the number of files to be provided, the number of spreadsheets for each file, the name of each spreadsheet, the abbreviations to be used, the names and numbers of columns or lines, the format of dates, and the use of spaces, special characters or symbols. (49)
107. Furthermore, the numerous and almost cryptic codes which the addressee of the decision was required to use — as the Commission stressed, ‘uniformly’ and in ‘the answers to all questions’ (50) — clearly neither enhanced the readability and user-friendliness of the contested decision, nor facilitated the undertaking’s task of compiling the answers.
108. It is safe to say that, even to an experienced businessman, the format in question would, at first glance, appear to be a mind-racking puzzle.
109. As I have explained in my Opinion in HeidelbergCement, the concept of ‘information’ for the purposes of Article 18 of Regulation No 1/2003 cannot be interpreted as permitting the Commission to require undertakings to submit the information requested according to a specific format. Addressees of requests for information are obviously obliged to respond to a request by providing information which is not only correct and complete, but also precise and clear. Moreover, where required to marshal information so as to provide a useful answer, they can also be expected, by virtue of their duty of active cooperation, to take into consideration the format requested by the Commission. Yet, the Commission cannot require undertakings to carry out such extensive, complex and time-consuming clerical and administrative tasks when submitting the information requested, that the preparation and building of a case against those undertakings seems, in real terms, to be ‘outsourced’ to them. It is after all for the Commission to prove an infringement of the EU competition rules. (51)
110. Be that as it may, irrespective of a possible infringement of Article 18 (which the applicant has not argued), it seems to me that the format imposed by the contested decision has clearly generated a very significant workload for the appellant. This is even less acceptable insofar as the formatting operations required by the Commission often concerned data which was already in the Commission’s possession or publicly available.
111. On the first aspect, it should not be overlooked that the contested decision came after other particularly burdensome requests for information (which took the form of simple requests under Article 18(2) of Regulation No 1/2003) had been answered by Italcementi. Those previous requests largely concerned the same kind of information, with some different details or according to a different format.
112. The contested decision thus obliged the appellant — because of the format required for the submission of the information — to make additional efforts for a mere reformatting of data already provided to the Commission. I cannot find any justification for such a request. In those circumstances, the Commission’s request for a very large amount of data to be reformatted could, mutatis mutandis, be compared to a request for numerous and lengthy documents in an undertaking’s possession to be translated into a different language. The fact that the Commission staff may not have the necessary language skills would not, from my point of view, justify such a request.
113. Had the Commission, in its requests for information issued under Article 18(2) of Regulation No 1/2003, drafted its questions in the way that they were formulated in the contested decision, or subsequently accepted only the submission of the extra information requested, the appellant would have been spared a significant amount of work.
114. On the second aspect, the contested decision required the appellant to marshal information which was in the public domain. For example, point 10 of Annex II to the contested decision reads: ‘All monetary values must be expressed in euro. If the local currency used is not the euro, please convert in euro by using the official exchange rate published by the European Central Bank in the period of reference.’ It is unclear why those calculations could not be made by the Commission’s own staff. (52)
115. For all those reasons, I am of the view that the appellant was right to argue that the contested decision infringed the principle of proportionality. The second part of the appellant’s fourth ground of appeal should consequently be upheld and the judgment under appeal set aside accordingly.
E – Right to be heard
1. Arguments of the parties
116. By its fifth ground of appeal, Italmobiliare alleges that the judgment under appeal fails adequately to address its arguments regarding an alleged violation of its right to be heard.
117. The Commission, for its part, considers that this ground of appeal should be dismissed.
2. Assessment
118. Like the Commission, I also am of the view that this ground of appeal is ill founded.
119. Neither the provisions of Regulation No 1/2003 nor the case-law of the Court recognise a right to be heard before the adoption of investigative measures such as requests for information made to the undertakings concerned. (53)
120. If the Commission decides, in some cases, to consult the undertakings concerned before the adoption of one such measure, (54) it does so of its own accord and in its own interest. Undertakings cannot derive any specific right from such consultation, apart perhaps from the right to have the Commission give due consideration to the observations which they may submit in response. (55)
121. Accordingly, the appellant cannot complain that, despite Italcementi having been consulted before the adoption of the contested decision on the draft questionnaire on 4 November 2010, the time-limit fixed for the submission of its observations was too short or that the Commission finally issued a decision with a questionnaire which was partly different from that sent in a draft form.
122. It follows that the fifth ground of appeal should be rejected.
VI – Consequences of the assessment
123. Under the first paragraph of Article 61 of the Statute of the Court of Justice, the Court is to set aside the judgment of the General Court if the appeal is well founded. Where the proceedings so permit, it may itself give final judgment in the matter. It may also refer the case back to the General Court.
124. I have concluded that three of the five grounds of appeal put forward by the appellant should be, in whole or in part, upheld and the judgment under appeal set aside accordingly.
125. In the light of the facts available and the exchange of views before the General Court and before this Court, I consider it possible for the Court to give final judgment on this matter, without the need to adopt any measure of organisation of the procedure, as requested by the appellant.
126. In its application before the General Court, Italmobiliare had submitted five pleas in support of its request for annulment of the contested decision.
127. In the light of the considerations developed above, it is my view that the contested decision was unlawful for three main reasons: it was wrongly addressed to Italmobiliare (see points 23 to 52 of this Opinion), it contained an insufficient statement of reasons regarding the purpose of the request (see points 55 to 77 of this Opinion), and it did not fulfil the requirement of proportionality (see points 96 to 115 of this Opinion). Each of those legal errors is, by itself, sufficient for the annulment of the whole decision. As a consequence, I find it unnecessary to examine whether the other pleas put forward by the appellant at first instance are well founded.
VII – Costs
128. Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the pleadings of the successful party.
129. If the Court agrees with my assessment of the appeal, then, in accordance with Articles 137, 138 and 184 of the Rules of Procedure, the Commission should pay the costs of these proceedings, both at first instance and on appeal.
VIII – Conclusion
130. Having regard to all the above considerations, I propose that the Court:
– set aside the judgment of the General Court of 14 March 2014 in Italmobiliare v Commission, T‑305/11;
– annul Commission Decision C(2011) 2364 final in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003 (Case 39520 — Cement and related products);
– order the Commission to pay the costs at first instance and on appeal.