OPINION OF ADVOCATE GENERAL
WAHL
delivered on 15 October 2015 (1)
Case C‑248/14 P
Schwenk Zement KG
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 — Choice of the legal instrument for requesting information — Proportionality — Statement of reasons)
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 Schwenk Zement KG (‘Schwenk Zement’ or ‘the appellant’) against the judgment of the General Court in which the latter partially 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 Schwenk Zement. 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 companies active in the cement industry. Those inspections were followed, in 2009 and 2010, by a number of requests for information under Article 18(2) of Regulation No 1/2003. Schwenk Zement’s premises were not inspected, nor did Schwenk Zement receive a request for information.
7. By letter of 19 November 2010, the Commission notified Schwenk Zement 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. Schwenk Zement submitted its observations to the Commission on 6 December 2010.
8. On the same day, the Commission notified Schwenk Zement 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) 2367 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 the contested decision). After pointing out that Schwenk Zement 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 to answer the questionnaire set out in Annex I. Notably, Annex I comprised 94 pages and 11 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 Schwenk Zement 12 weeks to reply to the first 10 sets of questions and 2 weeks to reply to the 11th set (recital 8 of the contested decision).
12. The operative part of the contested decision reads as follows:
‘Article 1
Schwenk Zement KG, 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, for questions 1-10, and two weeks, for question 11, from the date of notification of this decision. All annexes form an integral part of this decision.
Article 2
This decision is addressed to Schwenk Zement KG together with its subsidiaries located in the European Union under its direct or indirect control.’
13. Subsequently to the receipt of the contested decision, Schwenk Zement applied for an extension of the time-limit to reply to the 11th set of questions. That request was refused by the Commission.
14. On 18 April, 5 May 2011 and 27 June 2011, Schwenk Zement provided its answers to the questionnaire sent by the Commission.
III – Procedure before the General Court and the judgments under appeal
15. By application lodged on 10 June 2011, Schwenk Zement requested the General Court to annul the contested decision.
16. By judgment of 14 March 2014 in Schwenk Zement v Commission, T‑306/11 (‘the judgment under appeal’), (5) the General Court: (i) annulled Commission Decision C(2011) 2367 final of 30 March 2011 in proceedings pursuant to Article 18(3) of Council Regulation (EC) No 1/2003 (Case 39520 — Cement and related products) so far as concerns the 11th set of questions of the questionnaire comprising Annex I thereto; (ii) ordered Schwenk Zement to bear two thirds of its costs and pay two thirds of those incurred by the European Commission, and ordered the Commission to bear one third of its costs and pay one third of those incurred by Schwenk Zement; and (iii) dismissed the action as to the remainder.
IV – Procedure before the Court and forms of order sought
17. In its appeal, lodged with the Court on 22 May 2014, Schwenk Zement claims that the Court should:
– set aside the judgment in Case T‑306/11;
– annul the whole of Commission Decision C(2011) 2367 final in proceedings pursuant to Article 18(3) of Regulation No 1/2003 (Case 39520 — Cement and related products);
– in the alternative, refer the case back to the General Court for a fresh decision;
– order the Commission to pay the costs at first instance and on appeal.
18. The Commission, for its part, contends that the Court should:
– dismiss the appeal;
– in the alternative, if it were to set aside the judgment in Case T‑306/11, dismiss the action;
– order Schwenk Zement to pay the costs.
19. Schwenk Zement and the Commission presented oral argument at the hearing held on 3 June 2015.
V – Assessment of the grounds of appeal
20. Schwenk Zement submits three 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.
21. 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.
22. It is against that background that I shall now assess the grounds of appeal put forward by the appellant.
A – Proportionality in the choice of the legal instrument
1. Arguments of the parties
23. By its first two grounds of appeal, which can be examined jointly, the appellant criticises the General Court for having held that the Commission did not infringe the principle of proportionality by adopting a decision to request information under Article 18(3) of Regulation No 1/2003.
24. In its first ground of appeal, directed against paragraphs 45 to 55 of the judgment under appeal, the appellant argues that the General Court failed to appreciate the hierarchy between the two types of instruments provided for in Article 18: the Commission may resort to a binding decision only where it has reasonable grounds to consider that a simple request for information would not achieve its aim, for the addressee may be unwilling to cooperate.
25. In its second ground of appeal, directed against paragraphs 51 to 55 of the judgment under appeal, the appellant alleges that the General Court breached the principle of proportionality since it based its findings on generic references to the markets and undertakings concerned by the requests for information, instead of assessing the appellant’s own specific situation. In particular, it argues that the General Court failed to take into account the fact that the appellant had declared to the Commission, even before the contested decision was adopted, that it was willing to do everything in its power to answer the questionnaire as exhaustively and rapidly as possible.
26. The Commission contends that these grounds of appeal should be rejected.
2. Assessment
27. The first ground of appeal raises the issue of whether there is an inherent hierarchy or chronological order between the two types of instruments provided for in Article 18 of Regulation No 1/2003 and under what conditions the Commission should resort to one or the other of those instruments.
28. At the outset, it seems useful to recall that Regulation (EEC) No 17 (7) expressly provided for a two-stage procedure with regard to requests for information under that regime: the Commission was required to send a simple request before it could issue a binding decision. (8)
29. Yet, Regulation No 1/2003, which superseded Regulation No 17, does away with that two-stage procedure. Article 18(1) of the new regulation, in fact, provides that the Commission may ‘by simple request or by decision’ require undertakings and associations of undertakings to provide the information necessary to its investigations.
30. The choice of the EU legislature to amend the text of the relevant provision seems therefore particularly meaningful in that regard. (9) Nothing in the new provision indicates that there is some kind of hierarchy or chronology between the two instruments. In particular, the use of the conjunction ‘or’ denotes that it is for the Commission, in each case, to choose the instrument which it considers the more appropriate for the successful conduct of its inquiry, depending on the particular features of the case. (10)
31. Those features include not only the willingness of the undertaking in question to cooperate with the investigation, but also — and more importantly — the likelihood that the undertaking will actually cooperate, and do so within the period of time determined by the Commission. The role of the undertaking in question (for example suspected member of a cartel, ‘whistle-blower’, victim of the cartel or mere third party) may be relevant in the context of that assessment. The existence of possible reasons for proceeding swiftly may, as well, contribute to the Commission’s choice being orientated towards one or the other of the instruments specified in Article 18 of Regulation No 1/2003.
32. Therefore, I do not agree with the appellant that the Commission is entitled to adopt a binding decision only where it has reasonable grounds to consider that a simple request for information would not achieve its aim because the addressee may be unwilling to cooperate. There may be other reasons which prompt the Commission to adopt a decision immediately under Article 18(3) of Regulation No 1/2003. The Commission enjoys broad discretion in that respect. (11)
33. That said, as a matter of principle, it is conceivable that, in particular circumstances, the Commission’s choosing to make use of a binding decision (which also carries a higher risk of penalties), instead of a simple request, may infringe the principle of proportionality. (12) Indeed, that principle, as the General Court stressed, requires measures adopted by the EU institutions not to exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by them; 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. (13)
34. Yet, in the present case, I do not believe that the Commission had a choice between two different instruments (a simple request and a binding decision) which were equally appropriate for attaining the aim pursued.
35. First, the appellant has not adduced elements which call into question the proportionality of the Commission’s decision to request information under Article 18(3) of Regulation No 1/2003. The mere fact that, before the adoption of the contested decision, the appellant had informed the Commission that it was willing to do all in its power to answer the Commission’s questions as exhaustively and rapidly as possible, or the fact that (unlike the other undertakings investigated) Schwenk Zement had not received any previous request for information under Article 18(2) of Regulation No 1/2003 are not, in my view, sufficient to establish a lack of proportionality.
36. Second, as the Commission explained at the hearing, the Commission had a specific reason for which it decided to send, at the same time, a virtually identical request for information under Article 18(3) of Regulation No 1/2003 to all the undertakings suspected of taking part in the alleged infringements. The bulk of the information requested in the contested decision consisted in data which the Commission had asked for from all those undertakings with a view to making a comparison between that data. (14) 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.
37. In those circumstances, the Commission was entitled to consider that the adoption of a binding decision under Article 18(3) of Regulation No 1/2003 was the best means of ensuring that the information requested was as complete and correct as possible, and would be submitted within the desired period.
38. Furthermore, I do not consider that the General Court can be criticised for having based its findings on this point on generic references, without assessing the specific situation of the appellant. Indeed, the General Court has, in its analysis, taken into account the type of investigation carried out by the Commission and the number of undertakings involved, (15) as well as the quantity of information requested from the appellant. (16)
39. For all those reasons, it does not seem to me that the General Court erred in holding that the Commission did not infringe the principle of proportionality by adopting a decision under Article 18(3) of Regulation No 1/2003, instead of a simple request under Article 18(2) of the same regulation.
40. The appellant’s first and second ground of appeal should, therefore, be dismissed.
B – Statement of reasons
1. Arguments of the parties
41. By its third ground of appeal, directed against paragraphs 18 to 44 of the judgment under appeal, Schwenk Zement invokes a breach of the principle that EU acts must contain an adequate statement of reasons from a double angle. On the one hand, the General Court breached both Article 18 of Regulation No 1/2003 and Article 296 TFEU in holding that the contested decision was sufficiently reasoned. That, in turn, led to a breach of the principle of proportionality, because whether the request for information was proportionate or not was, failing any more detailed description of the purpose of the investigation, impossible to verify. On the other hand, the judgment under appeal is also vitiated by an inadequate statement of reasons: the reasons for which the appellant’s arguments on this point were dismissed have been illustrated only succinctly.
42. 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, such as the statement of objections. The Commission further argues that the second part of the ground of appeal is inadmissible in so far as the appellant does not explain with clarity which aspects of the General Court’s reasoning lack sufficient detail.
2. Assessment
43. At the outset, I must state that I find the objections put forward by the Commission against the second part of the present ground of appeal well founded. In that part of the ground of appeal, the appellant invokes an inadequate statement of reasons in the judgment under appeal. Yet, neither its appeal nor its oral submission identifies, with the required precision, the aspects of that judgment which are the object of criticism and the specific reasons for that criticism. The appellant merely alleges that the judgment under appeal is too ‘succinct’ when dealing with its plea concerning the statement of reasons in the contested decision.
44. Such an argument is manifestly insufficient to permit the Court to review the legality of the judgment under appeal. It is almost ironic that the appellant complains of the brevity of the judgment under appeal whereas its appeal on this point suffers from the same problem.
45. In any event, I believe that the judgment under appeal contains, in paragraphs 18 to 44, an adequate illustration of the reasons for which the General Court took the view that the contested decision included an adequate statement of reasons.
46. Conversely, I am of the opinion that the first part of Schwenk Zement’s third ground of appeal, which concerns the statement of reasons in the contested decision, is well founded.
47. To begin with, 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. (17)
48. 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. (18)
49. 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. (19)
50. 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 to, on the one hand, 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?
51. That question should, in my view, be answered in the negative.
52. In paragraph 37 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.
53. As regards 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.
54. 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, (20) 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.
55. 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 for which the appellant is active (as a seller or as a buyer).
56. According to the General Court, (21) the scarcity of details in the contested decision is partly alleviated by the fact that it expressly refers to the Commission decision to initiate proceedings, which included additional information on the geographic extent of the presumed infringements and the type of products covered.
57. At this juncture, it could be doubted whether such a combined reading of the two decisions should be permissible.
58. 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. (22) Indeed, it is important to enable those individuals or undertakings to grasp the reasons for such an act without an excessive interpretative effort, (23) 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.
59. 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. (24)
60. 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.
61. 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. (25) 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.
62. In the present case, however, the opposite is actually true. The questions put to Schwenk Zement 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. (26) 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.
63. 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.
64. 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 since some questions concerned information which was not purely factual and included a value judgement, (27) and other questions were relatively vague. (28) That being so, in respect of those questions, the risk of providing self-incriminatory answers could not easily be ruled out by the appellant. (29)
65. That lack of detail cannot — as the Commission 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. Even if those inspections and requests for information did not concern Schwenk Zement, the investigation was presumably at a relatively advanced stage by the time the Commission adopted the contested decision. 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 also in respect of Schwenk Zement. Those elements should have enabled the Commission to provide more detailed reasons in the contested decision.
66. 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. (30) 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.
67. In those circumstances, I find it inexcusable that, despite all the information gathered by the Commission in its first years of the investigation, and the significant efforts requested with the contested decision, Schwenk Zement was left in the dark regarding the precise scope of the Commission’s investigation.
68. 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, (31) 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. (32) 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.
69. For these 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 statement of reasons required 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 18 to 44 of that judgment, that the contested decision contained an adequate statement of reasons.
VI – Consequences of the assessment
70. 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.
71. I have concluded that the third ground of appeal put forward by the appellant should be upheld and the judgment under appeal set aside accordingly.
72. 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.
73. In its application before the General Court, the appellant submitted five pleas in support of its request for annulment of the contested decision.
74. In the light of the considerations developed above, the contested decision was unlawful because it did not contain a statement of reasons which complied with Article 18(3) of Regulation No 1/2003 (see points 41 to 69 of this Opinion). This legal error is, by itself, sufficient for the annulment of the whole decision. In consequence, I find it unnecessary to examine whether the other pleas put forward by the appellant at first instance are well founded.
VII – Costs
75. 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.
76. 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
77. 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 Schwenk Zement v Commission, T‑306/11;
– annul Commission Decision C(2011) 2367 final of 30 March 2011 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.