Case T‑306/11

Schwenk Zement KG

v

European Commission

(Competition — Administrative procedure — Decision requesting information — Neeed for the information requested — 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 — 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))

5.      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 — Scope

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

6.      Competition — Administrative procedure — Request for information — Powers of the Commission — Limit — Observance of the principle of proportionality — Time limit notified to the undertaking — Assessment of proportionality

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

7.      Actions for annulment — Actionable measures — Decision ordering information to be provided, pursuant to Article 18(3) of Regulation No 1/2003 — Interest in bringing proceedings — Contested decision complied with — No effect

(Art. 263, fourth para., TFEU; Council Regulation No 1/2003, Art. 18(3))

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 21, 24, 31, 37)

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 27, 28, 32)

3.      The obligation on the Commission 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 29, 59, 60)

4.      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 47-50)

5.      The need for 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. For the purpose of observing that general principle, a decision requesting information 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.

However, the potentially arbitrary nature of the contested decision cannot be proven by reference to the scope of the request for information, the Commission being legitimately entitled to conduct a wide-ranging investigation, provided that it is in possession of reasonable grounds pointing to the involvement of the undertaking in the various putative infringements it intends to investigate.

(see paras 64-66)

6.      Requests for information made by the Commission to an undertaking must comply with the principle of proportionality and the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the inquiry.

For the purpose of assessing the possible disproportionality of the burden entailed by the requirement to answer the questions within the time limit set by the Commission, account must be taken of the fact that an undertaking which is the addressee of a decision requesting information under Article 18(3) of Regulation No 1/2003 runs the risk not only of receiving a fine or periodic penalty payment if it supplies incomplete or belated information or if it fails to provide information, pursuant to Article 23(1)(b) and Article 24(1)(d) of Regulation No 1/2003, respectively, but also of receiving a fine if it supplies information which the Commission considers to be incorrect or misleading, pursuant to Article 23(1)(b) of that regulation.

Thus, the examination of the appropriateness of the time limit fixed in a decision requesting information is particularly important. That time limit must enable the addressee of the decision not only to provide its reply in practical terms, but also to satisfy itself that the information supplied is complete, correct and not misleading.

(see paras 71-73)

7.      The legal interest in bringing proceedings against a decision ordering information to be supplied still exists even where that decision has been complied with by its addressee. The annulment per se of such a decision may have legal consequences, in particular by obliging the Commission to take the measures needed to comply with the Court’s judgment and by preventing the Commission from repeating such a practice.

Therefore, it must be concluded that the undertaking has a legal interest in bringing proceedings against the contested decision and is entitled to raise such pleas as it deems appropriate in order to have the Court allow its heads of claim.

(see paras 75, 76)