Case T-23/09

Conseil national de l’Ordre des pharmaciens (CNOP) and Conseil central de la section G de l’Ordre national des pharmaciens (CCG)

v

European Commission

(Competition – Administrative procedure – Decision ordering an inspection – Article 20(4) of Regulation (EC) No 1/2003 – Addressee having no legal personality – Duty to state reasons – Concepts of undertaking and association of undertakings)

Summary of the Judgment

1.      Competition – Administrative procedure – Commission’s power of inspection – Decision ordering an inspection – Duty to state reasons – Scope

(Art. 81 EC; Council Regulation No 1/2003, Art. 20(4))

2.      Competition – Administrative procedure – Commission’s power of inspection – Scope – Access to undertakings’ premises – Purpose

(Council Regulation No 1/2003, Art. 20(4))

3.      Competition – Community rules – Associations of undertakings – Concept – Order of pharmacists and its organs – Included

(Arts 81 EC, 82 EC and 86 EC)

1.      In regard to Commission decisions ordering an inspection, Article 20(4) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] lays down the essential matters which must appear in such decisions, by requiring the Commission to provide a statement of the reasons for them, by stating the subject-matter and purpose of the inspection, the date on which it is to commence, the penalties provided for in Articles 23 and 24 of that regulation and the right to have such decisions reviewed by the Courts of the European Union. The case-law has clarified the extent of the obligation to state reasons for inspection decisions in the light of the content of that provision.

In view of the stage of the administrative procedure at which inspection decisions are taken, the Commission does not at that time have precise information enabling it to analyse whether the lines of conduct or acts covered can be categorised as decisions by undertakings or associations of undertakings within the meaning of Article 81 EC. It is precisely by taking account of the specific nature of inspection decisions that the case-law concerning the statement of reasons has made clear the types of information which must be contained in an inspection decision in order to enable the addressees to assert their rights of defence at that stage of the administrative procedure. To impose a more onerous obligation to state reasons on the Commission in that regard would not take due account of the preliminary nature of the inspection, the purpose of which is specifically to enable the Commission to establish at a later stage whether, where appropriate, infringements of Community competition law have been committed by the addressees of an inspection decision or by third parties.

(see paras 33, 41)

2.      Notwithstanding that the protection of private life provided for in Article 8 of the European Convention on Human Rights must be respected and the protection of the home is extended to the premises of commercial companies, it is important to safeguard the effectiveness of the inspections provided for in Article 20(4) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] as a necessary instrument to enable the Commission to exercise its functions as guardian of the Treaties in the area of competition. Thus, in order to safeguard the usefulness of the Commission’s right of access to the commercial premises of the undertaking subject to a procedure implementing Articles 81 EC and 82 EC, that right implies the power to search for various items of information which are not already known or fully identified.

The scope of inspections may be very wide and the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found.

(see paras 40, 69)

3.      The concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. Any activity consisting of offering goods and services on a market is an economic activity.

Pharmacists, at least self-employed pharmacists, offer, in return for payment, in particular, services of retail distribution of medicinal products and assume the financial risks attaching to that activity. Therefore, those persons carry on an economic activity and are thus undertakings within the meaning of Articles 81 EC, 82 EC and 86 EC.

The finding that the order of pharmacists and its organs are organisations which bring together and represent a number of professionals, who may be described as undertakings within the meaning of Article 81 EC is sufficient for it to be concluded that the Commission is entitled to describe them as associations of undertakings within the meaning of Article 20(4) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], and subject them to an inspection by virtue of that provision. The mere fact that some members are not undertakings is not sufficient to remove the association in question from the scope of Article 81 EC.

Arguments that the activities of the said order and its organs are outside the sphere of economic activity, given that they also have a social remit based on the principle of solidarity and that they exercise powers which are typically those of a public authority cannot alter that conclusion, since the question whether, in the exercise of their specific powers, the order in question and its organs escape the application of Article 81 EC or whether, on the contrary, some of their acts must be regarded as decisions by associations of undertakings within the meaning of that provision is clearly premature and will have to be determined, where appropriate, in the final decision ruling on the complaints upheld by the Commission.

(see paras 55, 70-71, 75-78)