Case T‑297/11

Buzzi Unicem SpA

v

European Commission

(Competition — Administrative procedure — Decision requesting information — Need for the information requested — Principle of sound administration — Obligation to state reasons — Proportionality)

Summary — Judgment of the General Court (Seventh Chamber), 14 March 2014

1.      Competition — Administrative procedure — Request for information — Indication of the legal basis and the purpose of the request — Scope — Infringement of the duty to state reasons — None

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(3))

2.      Competition — Administrative procedure — Observance of the rights of the defence — Possibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objections

(Art. 101 TFEU; Council Regulation No 1/2003)

3.      Competition — Administrative procedure — Request for information — Indication of the legal basis and the purpose of the request — Requirement of a necessary link between the information requested and the infringement investigated — Commission’s margin of discretion — Judicial review — Scope

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(3))

4.      Competition — Administrative procedure — Request for information — Rights of defence — Compliance with the general principle of EU law requiring protection against arbitrary or disproportionate interventions by the public authorities

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(3))

5.      Competition — Administrative procedure — Request for information — Powers of the Commission — Power to make a request involving marshalling of the requested information — Limits

(Council Regulation No 1/2003, Art. 18)

6.      Competition — Administrative procedure — Request for information — Rights of defence — No absolute right to silence — Right to refuse to provide an answer implying recognition of the existence of an infringement

(Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 48(2); Council Regulation No 1/2003, Art. 18)

7.      Competition — Administrative procedure — Request for information — Rights of defence — Right to refuse to provide an answer implying recognition of the existence of an infringement — Questions of the Commission having such replies as the consequence — Assessment

(Council Regulation No 1/2003, Art. 18)

8.      Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Requirement of a necessary link between the information requested and the infringement investigated — Public character of the information requested

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(1))

9.      Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Observance of the principle of proportionality — Request for information already in the Commission’s possession — Infringement of the said principle — Request seeking to obtain further details in relation to information previously provided — Lawfulness

(Council Regulation No 1/2003, Art. 18(3))

10.    Competition — Administrative procedure — Request for information — Procedures — Choice to be made between a simple request for information and a decision — Observance of the principle of proportionality — Judicial review

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18(1) to (3))

11.    Competition — Administrative procedure — Request for information — Obligation on the Commission to examine all the relevant evidence carefully and impartially — Sending of several successive requests — No infringement of the principle of sound administration

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 18)

1.      The essential constituents of the statement of reasons for a decision requesting information are set out in Article 18(3) of Regulation No 1/2003 itself. That provision provides that 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 it is to be provided. Article 18(3) of Regulation No 1/2003 also provides that the Commission is to indicate the penalties under Article 23, indicate or impose the penalties under Article 24, and further indicate the right to have the decision reviewed by the Court of Justice. In that regard, the Commission is not required to communicate to the addressee of such a decision all the information at its disposal concerning presumed infringements or to make a precise legal analysis of those infringements, although it must clearly indicate the presumed facts which it intends to investigate.

Thus, even though the statement of reasons for a decision drafted in very general terms, which would have benefited from greater detail, warrants criticism in that regard, it can nevertheless be considered that a reference to presumed infringements, read in conjunction with the decision to initiate proceedings under Article 11(6) of Regulation No 1/2003, corresponds to the minimum degree of clarity necessary to conclude that the requirements of Article 18(3) of Regulation No 1/2003 have been met.

(see paras 22, 23, 30, 36)

2.      In the context of the administrative procedure under Regulation No 1/2003, 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.

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.

However, at the preliminary investigation stage the Commission cannot be required to indicate — besides the putative infringements it intends to investigate — the evidence, that is to say the information leading it to consider that Article 101 TFEU may have been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the defence rights of the undertaking concerned.

(see paras 26, 27, 31)

3.      The obligation imposed on the Commission by Article 18(3) of Regulation No 1/2003 requiring it to state the legal basis and the purpose of the request for information is a fundamental requirement designed not merely to show that the information requested from the undertakings concerned is justified, but also to enable those undertakings to ascertain the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence. It follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate the putative infringements which justify the conduct of the investigation and are set out in the request for information.

In the light of the Commission’s broad powers of investigation and inspection, it falls to it to assess the necessity of the information requested from the undertakings concerned. As regards the Court’s power of review over that assessment by the Commission, the term ‘necessary information’ must be interpreted according to the objectives for the achievement of which the powers of investigation in question have been conferred upon the Commission. Thus, the requirement that there must exist a correlation between the request for information and the putative infringement is satisfied where, at that stage in the proceeding, the request may legitimately be regarded as having a connection with the putative infringement, in the sense that the Commission may reasonably suppose that the document will help it to determine whether the alleged infringement has taken place.

(see paras 28, 85)

4.      See the text of the decision.

(see paras 43, 44)

5.      Since the provision of ‘information’ within the meaning of Article 18 of Regulation No 1/2003 should be understood as covering not only the production of documents, but also the obligation to answer questions relating to those documents, the Commission is not confined merely to requesting the production of existing information irrespective of any involvement of the undertaking concerned. It is therefore open to the Commission to direct questions at an undertaking even if this means that the latter has to marshal the requested information.

However, the exercise of this prerogative is subject to the observance of at least two principles. First, the questions directed at an undertaking cannot force it to admit that it has committed an infringement. Second, the provision of answers to those questions must not constitute a burden which is disproportionate to the requirements of the investigation.

(see paras 56, 57)

6.      An absolute right to silence cannot be recognised to an undertaking to which a decision requiring information within the meaning of Article 18(3) of Regulation No 1 is addressed. To acknowledge the existence of such a right would be to go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission’s performance of its duty to ensure that the rules on competition within the common market are observed. A right to silence can be recognised only to the extent that the undertaking concerned would be compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to establish.

In order to ensure the effectiveness of Article 18 of Regulation No 1/2003, the Commission is therefore entitled to compel the undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anti-competitive conduct. This power of the Commission to obtain information does not fall foul of either Article 6(1) and (2) of the European Convention on Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, or the case-law of the European Court of Human Rights. Nor is it contrary to Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

The mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its request for the production of documents already in existence cannot constitute a breach of the fundamental principle of respect for the rights of the defence set out in Article 48(2) of the Charter of Fundamental Rights or impair the right to fair legal process laid down in Article 47 of the Charter of Fundamental Rights, which offer, in the specific field of competition law, protection equivalent to that guaranteed by Article 6 of the European Convention on Human Rights and Fundamental Freedoms. There is nothing to prevent the addressee of a request for information from showing, whether later during the administrative procedure or in proceedings before the European Union judicature, that the facts set out in its replies or the documents produced by it have a different meaning from that ascribed to them by the Commission.

(see paras 60-62)

7.      As regards the answers to questions that the Commission is likely to send to undertakings, a distinction should be drawn between those which can be classified as purely factual and those which cannot. It is only if a question cannot be classified as purely factual that it must be ascertained whether such a question might involve an admission on the part of the undertaking concerned of the existence of an infringement which it is incumbent upon the Commission to prove.

In this connection, a distinction should be drawn between two types of situation. First, if the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law. Questions which cannot be classified as purely factual and which entail an answer whose interpretation by the Commission may be disputed by the undertaking concerned in such a manner, do not give rise to a right of silence in favour of the undertaking.

Second, where the Commission has been able to establish that an undertaking has taken part in meetings between undertakings of a manifestly anti-competitive nature, it is for that undertaking to provide another explanation of the tenor of those meetings. Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence so that the Commission bears the burden of proving that that circumstance was not capable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls in question the probative value of the evidence relied on by the Commission. In respect of questions whose object or effect is to lead an undertaking to supply the Commission with such evidence, that undertaking necessarily enjoys a right of silence. Otherwise, it would be led to admit the existence of an infringement which it is incumbent upon the Commission to prove.

(see paras 63, 75-77)

8.      Information such as the post codes of supply sites, destinations and the place of delivery, or questions entailing the calculation of distances travelled by the product, from the place of supply to the delivery address, although by its nature accessible to the Commission, is the logical complement of information in the applicant’s sole possession. Therefore, the fact that the information might be public is not capable of precluding it from being regarded as necessary within the meaning of Article 18(1) of Regulation No 1/2003.

(see paras 87, 88)

9.      In order for a decision requesting information to comply with the principle of proportionality, it is not sufficient for there to be a link between the information requested and the subject matter of the investigation. It is also important that the obligation to provide information imposed on an undertaking should not be a burden on that undertaking which is disproportionate to the needs of the investigation.

It must be inferred from the foregoing that a decision requiring the addressee to provide — for the second time — information requested previously, on the ground that only some of the information is, in the Commission’s view, incorrect, might prove to be a burden which is disproportionate to the needs of the investigation and would not, therefore, comply with the principle of proportionality or the requirement of necessity. In such a situation, it is indeed open to the Commission to identify precisely the information it considers should be corrected by the undertaking concerned.

Likewise, the pursuit of an easier way to process the answers provided by the undertakings cannot justify compelling those undertakings to provide information which is already in the Commission’s possession in a new format. Even though the undertakings are under an obligation of active cooperation, which implies that they must make available to the Commission all information relating to the subject matter of the investigation, that obligation does not extend to the formatting of information already in the Commission’s possession.

A Commission decision requesting information which is more detailed than that provided previously must be regarded as justified by the needs of the investigation. The pursuit of all relevant information tending to prove or disprove the existence of an infringement of the competition rules may result in the Commission asking undertakings to clarify or provide details on certain items of factual information previously disclosed to it. The fact that the decision to request information seeks to secure fresh information or more detailed information is proof that the information requested is necessary.

(see paras 97-99, 101, 104)

10.    The principle of proportionality, which is among the general principles of EU law, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. 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.

Pursuant to Article 18(1) of Regulation No 1/2003, the Commission is entitled to request information by simple request or by decision, without that provision making the adoption of a decision subject to a simple request in advance. The choice it must make between a simple request for information under Article 18(2) of Regulation No 1/2003 and a decision requesting information under Article 18(3) of the same regulation is subject to review by the Courts of the European Union in accordance with the principle of proportionality. Such review must depend on the need for an appropriate inquiry, having regard to the special features of the case.

(see paras 118-121)

11.    Where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. In so far as the request for information, while having a similar subject matter to that of the previous requests for information, can be distinguished by virtue of the degree of detail of its questions or the existence of new questions, facts such as the scope of the investigation carried out by the Commission and the number of undertakings involved, as well as the technical nature of the relevant product market, are able to justify the successive adoption by the Commission of several, partly overlapping, requests for information without infringing the principle of sound administration.

(see paras 147, 148)