JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
25 November 2014 (*)
(Competition — Administrative procedure — Decision ordering an inspection — Proportionality — Appropriateness — Necessity — Not arbitrary — Statement of reasons)
In Case T‑402/13,
Orange, established in Paris (France), represented by J.-P. Gunther and A. Giraud, lawyers,
applicant,
v
European Commission, represented by A. Dawes and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decisions C(2013) 4103 final and C(2013) 4194 final of 25 and 27 June 2013, relating to a procedure under Article 20(4) of Council Regulation (EC) No 1/2003, addressed respectively to France Telecom SA and Orange and to all companies directly or indirectly controlled by them,
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek (Rapporteur), President, I. Labucka and V. Kreuschitz, Judges,
Registrar: S. Bukšek Tomac, Administrator,
having regard to the written procedure and further to the hearing on 18 June 2014,
gives the following
Judgment
Background to the dispute
1 The applicant, Orange (known as France Télécom SA before 1 July 2013), is a public limited company governed by French law whose objects are, inter alia, to provide electronic communication services, including fixed and mobile telephony services, and internet access to undertakings and natural persons. In the internet field, the applicant provides internet access through its national network ‘Orange Internet’ to which its customers are connected. In addition, it operates its own international network delivering internet content, known as ‘Open Transit International’, which is interconnected with Orange Internet but is also linked to a group of other international networks.
Proceedings before the French competition authority
2 On 9 May 2011, Cogent Communications Inc. and Cogent Communications France (taken together, ‘Cogent’) filed a complaint with the French competition authority (‘the authority’) alleging that the applicant had engaged in practices contrary to Article L. 420-2 of the Code of Commerce and Article 102 TFEU. Cogent claimed the existence of a refusal to allow access to an essential facility and of ‘tromboning’, criticised the inadequacy of the interconnection capacity granted to it by the applicant in Paris (France) and the introduction of a policy of charging for additional capacity in the context of ‘peering’ agreements, and alleged that there were restrictions of the propagation of ‘prefixes/routes to peers’ and margin squeezing.
3 On 20 September 2012, the authority adopted decision 12-D-18 relating to practices applied in the sector for reciprocal interconnection services in the area of internet connectivity. After examining the practices complained of by Cogent and the affected market, the authority essentially found that those practices either were not substantiated or did not constitute an abuse of a dominant position and took the view that, prima facie, the only possible competition concern that could exist stemmed from possible margin squeezing. In essence, it was conceivable that Cogent would not be able to replicate the very low prices charged by the applicant to some independent providers of content and/or applications on the internet for access to its subscribers and that such charging could amount to margin squeezing. Noting the opacity of the relations between Orange Internet and Open Transit International, the authority found that it was difficult to check whether such a practice had actually been applied. In response to that concern, the applicant proposed two commitments involving, first, the formalisation of an internal protocol between Orange Internet and Open Transit International and, second, a review of the implementation of the protocol by the preparatory inquiry units of the authority, commitments which were made compulsory by the authority’s decision.
Investigation of the Commission
4 On 18 January 2012, the European Commission, acting under Article 18(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2002 L 1, p. 1), sent requests for information to the applicant and its Polish subsidiary. These requests for information concerned possible anti-competitive conduct relating to the provision of internet connectivity services and access to end-users connected to telecommunication networks in the European Economic Area (EEA). The applicant and its Polish subsidiary replied to the requests on 15 February 2012.
5 On 25 June 2013, the Commission adopted Decision C(2013) 4103 final of 25 June 2013, relating to a procedure under Article 20(4) of Regulation No 1/2003, addressed to France Telecom and to all companies directly or indirectly controlled by it, ordering them to undergo an inspection. In view of the applicant’s change of business name, on 27 June 2013 the Commission adopted Decision C(2013) 4194 final, relating to a procedure under Article 20(4) of Regulation No 1/2003, addressed to Orange and to all companies directly or indirectly controlled by it, ordering them to undergo an inspection. Except for the names of the addressees, the content of Decisions C(2013) 4103 final and C(2013) 4194 final is identical (taken together, ‘the contested decisions’).
6 Recitals 3 to 10 in the preamble to the contested decisions are worded as follows:
‘(3) The Commission has information suggesting that [the applicant] may hold a dominant position in one or more relevant markets as regards the provision of internet connectivity services.
(4) The Commission has information suggesting that [the applicant] could apply practices that limit and/or impair the quality of internet connectivity services in the EEA. Such practices could include:
(a) “Tromboning”. [The applicant] could permit some transit providers to interconnect with sufficient capacity to [its] network only in remote locations, even if the [applicant] and the transit provider(s) in question are present and could interconnect in closer locations in the EEA, including in the Member State(s) where [the applicant] offers broadband internet access services; and/or
(b) Port congestion. [The applicant] can refuse and/or delay the updating of interconnection capacity with some transit providers, resulting in the congestion of existing ports; and/or
(c) Restrictions of route propagation. By imposing restrictions on route propagation in the context of its transit activities, [the applicant] could oblige transit operators and [content distribution networks] to connect directly to the network of [the applicant] in order to reach the end users of [the latter] or provide those users with an acceptable standard of quality; and/or
(d) Restrictive traffic ratios. [The applicant] could apply restrictive traffic ratios between incoming traffic and outgoing traffic, which would have the effect of limiting the incoming traffic of transit operators intended for its end users, and/or could ask transit operators to pay a fee for incoming traffic over and above that ratio; and/or
(e) Margin squeezing. The difference between the price charged by [the applicant] to transit operators for access to its network and the prices of [the applicant] for its own transit services could be such that transit operators which are just as efficient as [the applicant] are unable to compete for the provision of some transit services.
(5) Furthermore, the practices described in recital 4 above could have placed independent providers of content and/or applications on the internet at a competitive disadvantage when serving the end users of [the applicant] with respect to the supply of similar content and/or applications by [the applicant].
(6) The Commission has information suggesting that the practices described in recital 4 above could have taken place at least as from 2005 and might still be ongoing. However, it cannot be ruled out that these practices took place over a longer period of time.
(7) Should these claims prove to be well founded, the practices described in recital 4 above could constitute an infringement or infringements of Article 102 TFEU and Article 54 of the EEA Agreement.
(8) In order to enable the Commission to investigate all the relevant facts concerning the practices described in recital 4 and the context in which they occurred, inspections must be made in accordance with Article 20 of Regulation No 1/2003.
(9) The Commission has information suggesting that the practices described in recital 4 are driven by considerations which are subject to the utmost confidentiality and are known only to the senior staff members of [the applicant] and a limited number of trusted employees, [and that] the documents relating to those practices and the reasons underlying them are assumed to be limited to the minimum necessary and stored in places and/or in a form that would facilitate their concealment, non-production or destruction in the event of an inspection.
(10) In order to ensure that the current inspections are effective, they must be conducted without the undertakings suspected of participating in the infringement(s) being informed beforehand and several inspections must be carried out simultaneously.’
7 The first paragraph of Article 1 of the contested decisions states: ‘[The applicant] and all undertakings directly or indirectly controlled by it are required to undergo an inspection concerning their possible involvement in practices contrary to Article 102 TFEU and Article 54 of the EEA Agreement as regards the provision of internet connectivity services.’
8 According to Article 2 of the contested decisions, ‘the inspection shall begin on 9 July 2013 or shortly thereafter’.
9 Article 3 of the contested decisions states that ‘[t]his decision is addressed to [the applicant] and to all undertakings directly or indirectly controlled by it[; the] present decision shall be notified to the undertakings to which it is addressed under Article 297(2) TFEU immediately before the inspection’.
10 The inspection took place between 9 and 13 July 2013 at four of the applicant’s sites. On 17 July 2013, hard drive copy images, taken during the investigation, were examined at the Commission’s offices in the presence of the applicant’s representatives.
Procedure and forms of order sought by the parties
11 The applicant brought the present action on 31 July 2013.
12 Upon hearing the report of the Judge-Rapporteur, the General Court (Fourth Chamber) decided to open the oral procedure.
13 On 2 May 2014, the Court, by means of a measure of organisation of procedure under Article 64(3)(a) of its Rules of Procedure, put a written question to the applicant which was answered within the prescribed period.
14 At the hearing held on 18 June 2014, the parties presented their oral arguments and answered the oral questions asked by the Court.
15 The applicant contends that the Court should:
– annul the contested decisions;
– order the Commission to pay the costs.
16 The Commission claims that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
17 In support of its action, the applicant puts forward two pleas in law essentially alleging, first, breach of the principles of proportionality and ‘good administration’ and, second, that the contested decisions were arbitrary.
First plea in law alleging, in essence, breach of the principles of proportionality and ‘good administration’
18 The applicant disputes the proportionality and necessity of recourse to an inspection, in so far as the authority had investigated identical allegations of infringement and had adopted a decision accepting commitments from the applicant without finding any infringement of Article 102 TFEU, even though the Commission was necessarily aware of the procedure initiated by the authority and the decision ultimately adopted. In that context, it refers to the principle ne bis in idem, and also to the Commission’s obligation, under the principle of ‘good administration’, to examine carefully and impartially all the relevant aspects of the individual case. The applicant considers that the authority’s decision is unambiguously against an inspection inasmuch as, first, that decision is especially reasoned and detailed, second, it dismisses all the practices set out in the complaint filed with the authority, third, it takes a favourable view of the applicant’s conduct and, fourth, no incidents were reported in the performance of the commitments. In the reply, the applicant submits that having recourse to an inspection cannot be considered to be proportionate when the Commission failed to consult beforehand the file in the procedure before the authority.
19 The applicant also contends that, even if it were to be accepted that conducting an inspection concerning practices already been found to be compatible with EU competition law and in respect of which the Commission possesses ample information is consistent with the principle of proportionality, the Commission could, as a matter of law, do no more than seek additional information. It claims that that was not the case in this instance, the Commission having undertaken research that must necessarily lead to documents which already formed part of the file at its disposal. In this connection, it refers to the fact that, first, in the course of its research on the computers seized, the Commission used keywords linked to the authority’s investigation or to the commitments given, second, the Commission confiscated the answers to the questionnaire previously addressed to the applicant and, third, the only employee who was formally heard during the investigation had already been heard by the authority.
20 Lastly, the applicant argues that the inspection was disproportionate because the alleged infringements set out in the fourth recital in the preamble to the contested decisions are not, inherently, secret. It points out that they all relate to its ‘peering’ policy, which is public and accessible to everyone on its website. That policy is also wholly consistent with market standards and is transparent for market participants. In addition, the applicant claims that the inspection decision cannot be justified by the aim of ascertaining the reasons for its policy, for, in accordance with settled case-law, the concept of abuse of a dominant position is objective and need not involve any intention to cause harm.
21 The Commission contends that the first plea in law must be rejected.
22 It should be borne in mind that, according to settled case-law, the principle of proportionality, which is among the general principles of EU law, requires measures adopted by EU institutions not to exceed the limits of what is appropriate and necessary in order for the desired objective to be attained. However, 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 (see, to that effect, judgments of 13 November 1990 in Fedesa and Others, C‑331/88, ECR, EU:C:1990:391, paragraph 13, and of 14 July 2005 in Netherlands v Commission, C‑180/00, ECR, EU:C:2005:451, paragraph 103).
23 Furthermore, in the case of a decision ordering an inspection, observance of the principle of proportionality presupposes that the intended measures do not constitute, in relation to the aims pursued by the inspection in question, a disproportionate and intolerable interference (see, to that effect, judgment of 22 October 2002 in Roquette Frères, C‑94/00, ECR, EU:C:2002:603, paragraph 76). However, the Commission’s choice between an inspection by straightforward authorisation and an inspection ordered by a decision does not depend on matters such as the particular seriousness of the situation, extreme urgency or the need of absolute discretion, but rather on the need of an appropriate inquiry, having regard to the special features of the case. Therefore, where an inspection decision is intended solely to enable the Commission to gather the information needed to assess whether the Treaty has been infringed, such a decision is not contrary to the principle of proportionality (see, to that effect, judgment of 26 June 1980 in National Panasonic v Commission, 136/79, ECR, EU:C:1980:169, paragraphs 28 to 30, and judgment in Roquette Frères, cited above, EU:C:2002:603, paragraph 77).
24 It is also apparent from settled case-law that it is, in principle, for the Commission to decide whether a particular item of information is necessary in order to enable it to bring to light an infringement of the competition rules and even if it already has some indicia, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to order further investigations enabling it better to define the scope of the infringement or to determine its duration (see, to that effect, judgment of 18 October 1989 in Orkem v Commission, 374/87, ECR, EU:C:1989:387, paragraph 15, and judgment in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 78).
25 This plea in law can be understood to include a criticism both of the appropriateness of the contested decisions, that is to say, whether they are apt to attain the objectives which they pursue, and of their necessity, which implies that there was no less onerous alternative to the inspection carried out. The Court therefore considers it expedient to divide the arguments which the applicant puts forward in the context of this plea into two separate parts, according to whether it is the appropriateness or the necessity of the contested decisions that is disputed by the applicant.
First part of the plea in law concerning the appropriateness of the contested decisions
26 The applicant’s arguments can be understood as disputing the appropriateness of the contested decisions on the grounds that, in essence, the authority had already carried out an investigation which found that the conduct of the applicant was compatible not only with French competition law but also with Article 102 TFEU. Thus, the applicant’s analysis amounts to claiming that, in the circumstances of the present case, and in the light of the analysis set out in the decision of the authority, the objectives pursued by the contested decisions relating to investigating the compatibility of the applicant’s conduct with Article 102 TFEU had already been attained and that, therefore, the decisions cannot be considered to be appropriate to achieve those objectives.
27 It must, however, be stated that to follow that line of argument would be tantamount to classifying an inspection as inappropriate because the alleged infringements to which it relates had already been the subject of an investigation at national level, which would be in direct contradiction to settled case-law according to which, as a rule, the Commission is not to be bound by a decision taken by a national court or a national body pursuant to Articles 101(1) TFEU and 102 TFEU. The Commission is therefore entitled to adopt at any time individual decisions under Articles 101 TFEU and 102 TFEU, even where an agreement or practice has already been the subject of a decision by a national court and the decision contemplated by the Commission conflicts with that national court’s decision (see judgments of 14 December 2000 in Masterfoods and HB, C‑344/98, ECR, EU:C:2000:689, paragraph 48; of 8 March 2007 in France Télécom v Commission, T‑339/04, ECR, EU:T:2007:80, paragraph 79; and of 10 April 2008 in Deutsche Telekom v Commission, T‑271/03, ECR, EU:T:2008:101, paragraph 120).
28 The reference to the principle ne bis in idem in the application cannot succeed either, assuming that it was put forward in support of the argument that the contested decisions are inappropriate on the grounds that, in essence, it is not appropriate to carry out an inspection concerning conduct for which the applicant has been found not liable.
29 It is true that, according to settled case-law, the principle ne bis in idem must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes, in the sphere of competition, an undertaking being found liable or proceedings being brought against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not liable by an earlier decision that can no longer be challenged (see judgment of 14 February 2012 in Toshiba Corporation and Others, C‑17/10, ECR, EU:C:2012:72, paragraph 94 and the case-law cited).
30 It is, however, to be emphasised that the competition authorities of the Member States are not entitled to take decisions declaring that an undertaking is not liable for an infringement of Articles 101 TFEU or 102 TFEU, that is to say, decisions finding that those articles have not been infringed, for it is apparent both from the wording and the scheme of Regulation No 1/2003 and from the objective it pursues that it is reserved to the Commission alone to make a finding that there has been no infringement of Articles 101 TFEU or 102 TFEU, even if those articles are applied in a procedure conducted by a national competition authority (see, to that effect, judgment of 3 May 2011 in Tele2 Polska, C‑375/09, ECR, EU:C:2011:270, paragraphs 20 to 30). In this connection, the Court of Justice has pointed out, in particular, that the adoption of such a ‘negative’ decision on the merits by a national competition authority would risk jeopardising the uniform application of Articles 101 TFEU and 102 TFEU, which is one of the objectives of Regulation No 1/2003 highlighted by recital 1 in its preamble, given that such a decision might prevent the Commission subsequently finding that the practice in question amounts to a breach of those provisions of EU law (judgment in Tele2 Polska, cited above, EU:C:2011:270, paragraph 28).
31 Consequently, when a competition authority of a Member State, pursuant to Article 5 of Regulation No 1/2003, accepts commitments or decides that there are no grounds for action, it cannot be considered to have adopted a decision finding that there was no infringement of Article 101 TFEU or of Article 102 TFEU. Therefore, the applicant may not validly use the decision adopted by the authority in respect of it for the purpose of applying the principle ne bis in idem, in the circumstances of the present case.
32 In addition, the applicant’s arguments can also be interpreted as disputing the appropriateness of the inspection on the grounds that the Commission had been informed of the draft decision of the authority pursuant to Article 11(4) of Regulation No 1/2003 and had not exercised the power under Article 11(6) of that regulation to initiate proceedings itself, relieving the authority of its competence. The applicant appears to infer from this that the Commission took the view, either that the authority’s decision was consistent with Article 102 TFEU or that no importance was to be attached to the case. Against that background, the applicant asks the Court, by means of measures of organisation of procedure, to request the disclosure of any written observations of the Commission following notification of the authority’s draft decision.
33 In that regard, it should be noted that Article 11(4) of Regulation No 1/2003 provides:
‘[n]o later than 30 days before the adoption of a decision requiring that an infringement be brought to an end, accepting commitments or withdrawing the benefit of a block exemption Regulation, the competition authorities of the Member States shall inform the Commission. To that effect, they shall provide the Commission with a summary of the case, the envisaged decision or, in the absence thereof, any other document indicating the proposed course of action. This information may also be made available to the competition authorities of the other Member States. At the request of the Commission, the acting competition authority shall make available to the Commission other documents it holds which are necessary for the assessment of the case. The information supplied to the Commission may be made available to the competition authorities of the other Member States. National competition authorities may also exchange between themselves information necessary for the assessment of a case that they are dealing with under Article [101] or Article [102 TFEU].’
34 Article 11(6) of Regulation No 1/2003 provides:
‘[t]he initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the Member States of their competence to apply Articles [101] and [102 TFEU]. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority.’
35 Admittedly, it is apparent from reading these two provisions together that the receipt by the Commission of the draft decisions from the national competition authority, pursuant to Article 11(4) of Regulation No 1/2003, can provide the opportunity for the Commission to exercise the right and the discretionary power conferred on it by Article 11(6) of that regulation to relieve a competition authority of a Member State of its competence to apply Articles 101 TFEU and 102 TFEU in a specific case.
36 It does not, however, follow that if the Commission does not share the assessment relating to the application of Articles 101 TFEU and 102 TFEU set out in the draft decision notified by the competition authority of a Member State, or if the Commission has doubts in that regard, it is necessarily bound to initiate proceedings under Article 11(6) of Regulation No 1/2003, or that the non-initiation of proceedings precludes it from conducting its own investigation at a later stage in order to lead to a result other than that arrived at by the competition authority.
37 It should be recalled that, according to settled case-law, the Commission, entrusted by Article 105(1) TFEU with the task of ensuring application of the principles laid down in Articles 101 TFEU and 102 TFEU, is responsible for defining and implementing the orientation of European Union competition policy. In order to perform that task effectively, it is entitled to give differing degrees of priority to the complaints brought before it and, for that purpose, it has discretionary power (see judgments of 4 March 1999 in Ufex and Others v Commission, C‑119/97 P, ECR, EU:C:1999:116, paragraph 88, and of 17 May 2001 in IECC v Commission, C‑449/98 P, ECR, EU:C:2001:275, paragraph 36). The Court considers that the same is true for the application of Article 11(6) of Regulation No 1/2003.
38 This interpretation is moreover supported by the policy line which the Commission made clear in paragraph 54(b) of its Notice on cooperation within the Network of Competition Authorities (OJ 2004 C 101, p. 43), according to which such intervention is envisaged only when a notified draft decision is obviously in conflict with consolidated case-law. It is not, therefore, to be inferred from that notice that the Commission intended to bind itself to intervening in all cases in which it has doubts as to the conformity of a notified draft decision with Articles 101 TFEU and 102 TFEU.
39 Thus, non-intervention by the Commission under Article 11(6) of Regulation No 1/2003 cannot be regarded as acceptance of the merits of the authority’s decision under Article 102 TFEU.
40 In consequence, no conclusions on the appropriateness of an investigation conducted by the Commission can be drawn from the fact that the latter did not exercise the power conferred on it by Article 11(6) of Regulation No 1/2003 following notification of a draft decision of a national competition authority covering a similar subject-matter.
41 In the light of the foregoing, the criticisms levelled at the appropriateness of the contested decisions are not well founded and, therefore, the first part of the plea in law must be rejected, without it being necessary to grant the applicant’s request for a measure of organisation of procedure, referred to in paragraph 32 above.
Second part of the plea in law concerning the necessity of the contested decisions
42 The applicant disputes the necessity of the contested decisions on two counts. First, it disputes the necessity of the contested decisions on the grounds that there was a less onerous alternative to the adoption of an inspection measure, that being the examination of the file in the procedure before the authority, and points out that, by failing to conduct such an examination, the Commission failed to fulfil its obligation to examine carefully and impartially all the relevant aspects of the individual case, thereby also infringing the principle of ‘good administration’. Second, the applicant disputes the necessity of the inspection measure in so far as it concerned information which was already in the Commission’s possession or which could have been in the Commission’s possession without having recourse to the inspection.
– The complaint alleging the existence of a less onerous alternative to the contested decisions and breach of the principle of good administration
43 In its reply, the applicant claims ‘that there was a less onerous way for the Commission to attain its objective (relying on the national procedure), which the Commission disregarded, [which would] naturally [have been] without prejudice to the Commission’s power, once such information had been gathered and examined, to decide, with full knowledge of the matter before it, whether an inspection was still proportionate’. As regards the possibility for the Commission of obtaining the authority’s file, besides Article 11(4) of Regulation No 1/2003, the applicant also refers to Articles 18(6) and 20(4) of that regulation.
44 The Commission contends that this line of argument should be rejected and submits that pleading Articles 18(6) and 20(4) of Regulation No 1/2003 at the stage of the reply is contrary to Article 48 of the Rules of Procedure and must, therefore, be ruled inadmissible.
45 In the first place, as regards the admissibility of this line of argument put forward at the reply stage, it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the original application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission or argument which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (see judgment of 14 March 2007 in Aluminium Silicon Mill Products v Council, T‑107/04, ECR, EU:T:2007:85, paragraph 60 and the case-law cited).
46 In the present case, it should be noted that the application contains lengthy explanations concerning the existence of the authority’s decision, the fact that the decision should have been taken into account under the principle of ‘good administration’ and the disproportionate nature of the contested decisions, because of the very existence of that decision. It follows that ever since the stage of the application the applicant has disputed the proportionality of the contested decisions in its different aspects, on the basis of the existence of the authority’s decision. Consequently, the arguments in the reply calling in question the necessity of the inspection, on the grounds that it was possible for the Commission to consult the file in the procedure before the authority, including the reference to Articles 18(6) and 20(4) of Regulation No 1/2003, constitute the expansion of a plea raised in the application (see, to that effect, judgment of 18 November 2004 in Ferriere Nord v Commission, T‑176/01, ECR, EU:T:2004:336, paragraph 136 and the case-law cited).
47 Furthermore, it is only upon reading the defence that the applicant could have become aware of the possibility that the Commission might not have requested disclosure of the file in the procedure before the authority before the adoption of the contested decisions. In its defence, the Commission emphasises that, when it adopted the contested decisions, it was not in possession of the material from the file in the procedure before the authority and that it was not required to obtain such information in the context of its cooperation with the authority. Therefore, the arguments set out in the reply must also be considered to be based on matters of fact which came to light in the course of the procedure and are also, to that extent, consistent with Article 48 of the Rules of Procedure.
48 In the second place, and on the merits, it must be determined whether disclosure to the Commission of the file in the procedure before the authority could have been a less onerous alternative, but as efficient as resorting to an inspection, capable of achieving the Commission’s legitimate aim of obtaining additional information about the alleged infractions it was investigating.
49 Emphasis should also be placed on the importance of that examination in the light of the duty of diligence to which the applicant refers in its pleadings under the cloak of the principle of ‘good administration’, which entails the obligation for the Commission to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and of 16 September 2013 in ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 84 and case-law cited).
50 First, it must be observed that comparison of the contested decisions with that of the authority reveals strong similarity in terms of the kind of conduct forming the subject-matter of the respective investigations, that conduct being practices consisting in limiting access to networks (‘tromboning’, restricting route propagation), charging for access to those networks (billing the allocation of additional capacity, restrictive traffic ratios and margin squeezing) and discrimination in favour of content offered by the applicant. Thus, the Commission’s investigation differs from that carried out by the authority mainly because of its wider geographic and temporal scope.
51 Second, as noted in paragraph 33 above, it was open to the Commission, after being informed pursuant to Article 11(4) of Regulation No 1/2003, to ask the authority to disclose the information contained in its file.
52 In that regard, it should be noted that, pursuant to Article 12(1) of Regulation No 1/2003, the Commission would, in principle, have been entitled to use the information contained in the authority’s file as evidence. Although the second paragraph of that article provides that ‘[i]nformation exchanged shall only be used in evidence for the purpose of applying Article [101] or Article [102 TFEU] and in respect of the subject-matter for which it was collected by the transmitting authority …’, the fact remains that the alleged infringements to which the Commission refers are essentially the same and differ from those concerned by the authority’s decision only in terms of their wider geographic and temporal scope. Thus, the proviso set out in Article 12(2) of Regulation No 1/2003 would not have prevented the Commission from using the documents disclosed by the authority.
53 Third, it should be noted that observance by the Commission of the duty of diligence was all the more important in the circumstances of this case, because the case-law confers discretion on it in implementing Article 20(4) of Regulation No 1/2003, in order to safeguard the effectiveness of that provision (see, to that effect and by analogy, order of 17 November 2005 in Minoan Lines v Commission, C‑121/04 P, EU:C:2005:695, paragraph 36). In such circumstances, observance of the guarantees conferred by the legal order of the Union in administrative procedures, including the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case, is of all the more fundamental importance (see, to that effect, Atlantic Container Line and Others v Commission, T‑191/98 and T‑212/98 to T‑214/98, ECR, EU:T:2003:245, paragraph 404 and the case-law cited, and ATC and Others v Commission, paragraph 49 above, EU:T:2013:451, paragraph 84).
54 Fourth and last, in the present case, compliance with that obligation is all the more important because the exercise of the powers of inspection conferred on the Commission by Article 20(4) of Regulation No 1/2003 vis-à-vis an undertaking constitutes a clear interference with the latter’s right to respect for its privacy, private premises and correspondence (see, to that effect, order of 30 March 2006 in Strintzis Lines Shipping v Commission, C‑110/04 P, EU:C:2006:211, paragraphs 32 and 33).
55 In this case, it may indeed appear at the very least unfortunate that the Commission should at the outset have opted for an inspection without first examining the information obtained by the authority in relation to similar conduct.
56 The fact remains that the inspection decisions are not thereby vitiated by illegality. In the circumstances of the present case and as the Commission rightly pointed out, examination of the file in the authority’s possession was not an alternative to an inspection, since the authority had not carried out any inspection at the applicant’s premises and its decision had therefore been taken only on the sole basis of the information voluntarily provided by the applicant.
57 Thus, in the present case, the necessity of an appropriate effective inquiry was capable of justifying recourse to an inspection, for that was the only measure enabling the Commission to collect information which, by its very nature, had perhaps not been voluntarily produced by the applicant in the course of the procedure before the authority.
58 In that regard, the Commission points out that one of the aims of the inspection was to look for documents concerning the applicant’s business strategy that might reveal the existence of an intention or plan to eliminate competition.
59 Contrary to what the applicant submits, such information is potentially relevant to the Commission’s examination of the suspected infringements.
60 It is true, as the applicant recalls, that the concept of abuse is objective and need not involve any intention to cause harm (judgment of 12 December 2000 in Aéroports de Paris v Commission, T‑128/98, ECR, EU:T:2000:290, paragraph 173).
61 That does not, however, lead to the conclusion that information concerning the applicant’s intention when it adopted its business strategy is irrelevant. As the Court of Justice has made clear, when the Commission undertakes an assessment of the conduct of an undertaking in a dominant position, that assessment being an essential prerequisite for a finding that there is an abuse of such a position, the Commission is necessarily required to assess the business strategy pursued by that undertaking. For that purpose, it is clearly legitimate for the Commission to refer to subjective factors, namely, the motives underlying the business strategy in question. Therefore, although the Commission is under no obligation to establish the existence of an anti-competitive intention on the part of the undertaking in a dominant position in order to render Article 102 TFEU applicable, such intention may nevertheless be taken into account (judgment of 19 April 2012 in Tomra Systems and Others v Commission, C‑549/10 P, ECR, EU:C:2012:221, paragraphs 17 to 21).
62 For the same reasons, it is necessary to reject the applicant’s arguments disputing the need for the inspection on the grounds that the information sought was of a public nature or was already in the Commission’s possession owing to the answers given to its previous requests.
63 Even if, as the applicant submits, all the alleged infringements referred to in the contested decisions stem from the applicant’s ‘peering’ policy and the specific features of that policy are of a public nature, the same cannot be said of the possible anti-competitive motives that might have led to the adoption of that policy. The information disclosing such motives being inherently secret, it is unlikely to be apparent from the public version of the applicant’s policy and it is far from certain that it was referred to in the answers to the requests for information sent by the Commission.
64 Accordingly, in view of all of the foregoing, it must be concluded that, when the contested decisions were adopted, it was reasonable for the Commission to consider that there was no less onerous alternative to having recourse to an inspection. It follows that the Commission did not infringe the principle of proportionality in that respect or, given the circumstances of the present case, its duty of diligence.
65 The first complaint must therefore be rejected.
– The complaint alleging that the Commission did not seek new information
66 The applicant claims that the Commission can legitimately seek only information additional to that already in its possession. It argues that the Commission undertook research which could lead only to documents which already formed part of the file in its possession or the file before the authority, to which it could gain access. In support of that line of argument, the applicant submits that the Commission, in the course of its research on the computers seized, used key words and confiscated documents linked to the applicant’s answers to the authority’s questions, to the earlier requests for information from the Commission and to the commitment given before the authority. It also points out that the only employee who was formally heard by the Commission had already been heard by the authority.
67 Thus, in essence, the applicant disputes the necessity of the contested decisions on the ground that the inspection concerned information which was already in the Commission’s possession or which could have been in the Commission’s possession if it had examined the authority’s file.
68 In accordance with the case-law mentioned in paragraph 24 above, it is, in principle, for the Commission to decide whether a particular item of information is necessary to enable it to bring to light an infringement of the competition rules and even if it already has some indicia, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to order further investigations enabling it better to define the scope of the infringement or to determine its duration.
69 First, it should be observed that the applicant neither claims nor establishes that the inspection exclusively or substantially involved searching for information linked to the procedure before the authority and to its answers to the requests for information. In this respect, the applicant merely gives a few examples of keywords and documents seized, even though the inspection lasted almost four days and covered various premises.
70 Second, for reasons similar to those set out in paragraphs 55 to 61 above, it must be concluded that it was reasonable for the Commission to search for information which, although linked to the procedure before the authority or to the answers provided by the applicant to the Commission’s requests for information, was unlikely, on account of its nature, to be disclosed by the applicant, particularly because it might signal the existence of an intention or a plan to eliminate competition.
71 Accordingly, the Court must reject this complaint and, consequently, the second part of the first plea in law.
72 Furthermore, in accordance with the case-law cited in paragraph 22 above, a measure, even if appropriate and necessary in order to achieve the aims legitimately pursued, must not cause disadvantages disproportionate to those aims. More particularly, it follows from the case-law cited in paragraph 23 above that, in the case of a decision ordering an inspection, observance of the principle of proportionality presupposes that the intended measures do not constitute, in relation to the aims pursued by the inspection in question, a disproportionate and intolerable interference.
73 In the present case, it is not apparent from the applicant’s pleadings that it disputes the extent of the disadvantages caused by the inspection carried out at its premises. At all events, the scope of that inspection and the disadvantages it may have caused, as noted in the application, namely, that it lasted four days, covered four sites, and involved visits to 18 offices, the seizure of 11 computers and 5 smartphones, the hearing of one person and the analysis and indexation of 34 staff mailboxes, and also the inspection of hard drive copy images at the Commission’s offices in the presence of the applicant’s representatives, cannot, in this instance, be considered disproportionate in view of the alleged infringements investigated by the Commission.
74 The first plea in law must therefore be rejected in its entirety.
Second plea in law alleging that the inspection was arbitrary
75 In the context of the second plea in law, the applicant argues that it is for the Court to ensure that inspection decisions are not arbitrary and that that review must involve checking that the indicia in the Commission’s possession before adoption of the inspection decision were sufficiently reliable and detailed. It also points out that it is not required to submit evidence casting doubt on the reliability of the indicia in the Commission’s possession in order to have the Court examine them. In the present case, the applicant considers that both the fact that the contested decisions are identical to the decision of the authority and the Commission’s conduct during the investigation, using keywords linked to the procedure before the authority, indicate that the Commission was not in possession of reliable, detailed indicia before adopting the inspection measure. In the reply, the applicant claims that as early as the application stage, it asked the Court to review the indicia in the Commission’s possession.
76 In the first place, the Commission observes that the obligation imposed on it by Article 20(4) of Regulation No 1/2003 to specify the subject-matter and purpose of the inspection is described by the case-law as a fundamental requirement in order, in particular, to show that the proposed entry onto the premises of the undertakings concerned is justified. In the second place, the Commission considers that the applicant did not, in the application, ask the Court to order the production of the indicia the Commission had in its possession before the adoption of the contested decisions. It submits that any such request, when made at the stage of the reply, must be regarded as inadmissible.
77 As regards the response to be given to this plea in law, it should be borne in mind that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up to notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and on how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, to that effect, judgments of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 113 and the case-law cited, and of 8 July 2008 in AC-Treuhand v Commission, T‑99/04, ECR, EU:T:2008:256, paragraph 47).
78 The starting point for the preliminary investigation stage is the date on which the Commission, in exercise of the powers conferred on it by Articles 18 and 20 of Regulation No 1/2003, takes measures which involve the allegation of an infringement and have major repercussions on the situation of the undertakings under suspicion. It is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it (see, to that effect, AC-Treuhand v Commission, paragraph 77 above, EU:T:2008:256, paragraph 48 and the case-law cited).
79 However, the measures of inquiry adopted by the Commission during the preliminary investigation stage, in particular, the investigation measures and the requests for information, suggest, by their very nature, that an infringement has been committed and may have major repercussions on the situation of the undertakings under suspicion. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (judgment in AC-Treuhand v Commission, paragraph 77 above, EU:T:2008:256, paragraphs 50 and 51; see also, to that effect, judgments of 21 September 1989 in Hoechst v Commission, 46/87 and 227/88, ECR, EU:C:1989:337, paragraph 15, and in Elf Aquitaine v Commission, paragraph 77 above, EU:C:2011:620, paragraphs 116 and 117 and case-law cited).
80 In that respect, it must be recalled that the obligation under Article 20(4) of Regulation No 1/2003 to specify the subject-matter and purpose of the inspection constitutes a fundamental guarantee of the rights of defence of the undertakings concerned and, consequently, the scope of the duty to state the reasons for inspection decisions may not be limited by reference to considerations relating to the effectiveness of the investigation. Whilst it is indeed the case that the Commission is not required to communicate to the addressee of such a decision all the information at its disposal concerning the presumed infringements, or to delimit precisely the relevant market, or to set out the exact legal nature of the infringements, or to indicate the period during which those infringements were committed, it is obliged to state, as precisely as possible, the presumed facts that it intends to investigate, that is to say, what it is looking for and the matters to which the inspection must relate (see, to that effect, judgments in Hoechst v Commission, paragraph 79 above, EU:C:1989:337, paragraph 41; of 17 October 1989 in Dow Benelux v Commission, 85/87, ECR, EU:C:1989:379, paragraph 10; and in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 48).
81 In view of the foregoing, at the stage of the preliminary investigation the Commission cannot be required to indicate, besides the putative infringements it intends to investigate, the evidence, that is to say, the indicia leading it to consider that Article 102 TFEU has possibly been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the rights of defence of the undertaking concerned.
82 It cannot, however, be inferred from the foregoing that the Commission does not have to be in possession of information leading it to consider that Article 102 TFEU may have been infringed before the adoption of a decision under Article 20(4) of Regulation No 1/2003.
83 It should be recalled that the requirement of protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union (judgments in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 27; of 14 November 2012 in Nexans France and Nexans v Commission, T‑135/09, ECR, EU:T:2012:596, paragraph 40; and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, T‑140/09, EU:T:2012:597, paragraph 35).
84 With a view to observing that general principle, an inspection decision must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules (judgments in Nexans France and Nexans v Commission, paragraph 83 above, EU:T:2012:596, paragraph 43, and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, paragraph 83 above, EU:T:2012:597, paragraph 38; also see, to that effect and by analogy, judgment in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraphs 54 and 55).
85 As regards, first, the admissibility of the applicant’s request to have the Court review the indicia in the Commission’s possession, a request to which the Commission objected on the ground that it was submitted for the first time at the reply stage, it is indeed apparent from the case-law cited in paragraph 45 above that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure, but that a submission or argument that may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and is closely connected therewith, must be declared admissible.
86 It must be stated that even though the applicant did not expressly ask the Court in the application to review the indicia in the Commission’s possession, it is necessarily apparent from the explanations put forward in the second plea in law and, in particular, from paragraphs 98 to 103 of the application, that this was the thrust of its arguments. In addition, the more explicit request appearing in paragraphs 67 to 72 of the reply is closely connected with the explanations set out in paragraphs 98 to 103 of the application. Consequently, at all events, the request explicitly appearing in the reply constitutes amplification of the second plea in law and is therefore, also on that basis, admissible.
87 As regards, in the second place, the question whether the applicant’s request should be granted in the present case, it must be noted that the determination whether the Commission had reasonable grounds for suspecting an infringement of the competition rules before the adoption of an inspection decision is not the only means by which the Court can ensure that inspection decisions are not arbitrary.
88 Only when a request to that effect is brought before the Court and the undertakings to which a decision under Article 20(4) of Regulation No 1/2003 is addressed have put forward certain arguments liable to cast doubt on the reasonableness of the grounds on which the Commission relied in order to adopt that decision may the Court take the view that it is necessary to carry out such a determination (see, to that effect, judgments in Nexans France and Nexans v Commission, paragraph 83 above, EU:T:2012:596, paragraph 72, and in Prysmian and Prysmian Cavi e Sistemi Energia v Commission, paragraph 83 above, EU:T:2012:597, paragraph 70; see, by analogy, judgment of 14 March 2014 Cementos Portland Valderrivas v Commission, T‑296/11, ECR, EU:T:2014:121, paragraph 42).
89 The review of the statement of reasons on which a decision is based also allows the courts to ensure that the principle of protection against arbitrary and disproportionate intervention is respected, in so far as the statement of reasons makes it possible to show that the operation carried out on the premises of the undertakings concerned is justified (judgments in Hoechst v Commission, paragraph 79 above, EU:C:1989:337, paragraph 29; in Roquette Frères, paragraph 23 above, EU:C:2002:603, paragraph 47; and in France Télécom v Commission, paragraph 27 above, EU:T:2007:80, paragraph 57).
90 In that regard, it should be borne in mind that Article 20(4) of Regulation No 1/2003 defines the essential material that must be included in a decision ordering an inspection, requiring the Commission, in particular, to specify the subject-matter and purpose of the inspection. In respect of that obligation, it follows from the case-law cited in paragraph 80 above that it is for the Commission to state, as precisely as possible, the presumed facts that it wishes to investigate, namely, what it is looking for and the matters to which the inspection must relate.
91 Consequently, when the Court takes the view that the presumed facts which the Commission wishes to investigate and the matters to which the inspection must relate are defined sufficiently precisely, it may conclude that an inspection decision was not arbitrary, without it being necessary to check substantively the content of the indicia in the Commission’s possession at the date of adoption of the decision.
92 It must be stated that this is the case in respect of the contested decisions. As is apparent from recitals 3 to 10 in the preamble to the contested decisions, reproduced in paragraph 6 above, the nature of the suspected restrictions of competition is defined sufficiently precisely and in sufficient detail. Thus, they involve possible infringements of Article 102 TFEU owing to practices consisting of, first, limiting access to the applicant’s networks (‘tromboning’, port congestion and restricting route propagation) and, second, charging for access to those networks (billing the allocation of additional capacity, restrictive traffic ratios and margin squeezing). Furthermore, the contested decisions clearly explain how the applicant’s conduct could fall within the suspected practices.
93 In those circumstances, the Court is in a position to conclude that the contested decisions were not arbitrary on the sole basis of the reasons set out in those decisions, without it being necessary to examine the indicia in the Commission’s possession when the decisions were adopted.
94 In the light of the foregoing, the second plea in law must be rejected and, in consequence, the action must be dismissed in its entirety.
Costs
95 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Orders Orange to bear the costs.
Delivered in open court in Luxembourg on 25 November 2014.
[Signatures]