Case T‑135/09

Nexans France SAS and

Nexans SA

v

European Commission

(Competition — Administrative procedure — Action for annulment — Acts adopted during an inspection — Intermediate measures — Inadmissibility — Decision ordering an inspection — Duty to state reasons — Protection of privacy — Reasonable grounds — Review by the Courts)

Summary — Judgment of the General Court (Eighth Chamber), 14 November 2012

1.      Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Clear indication of reasonable grounds for suspecting an infringement — Judicial review

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

2.      Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Obligation to indicate the sectors covered by the alleged infringement — No obligation to identify precisely the market covered by the investigation

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

3.      Competition — Administrative procedure — Commission’s power of inspection — Limits — Use of documents or items of information for the purposes of the investigation — Use covering only the sectors of activity indicated in the decision ordering the inspection

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

4.      Competition — Administrative procedure — Commission’s power of inspection — Limits — Examination of documents relating to conduct producing effects outside the common market — Lawfulness — Conditions

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

5.      Proceedings — Treatment of cases before the General Court — Protection given to parties against misuse of pleadings and other procedural documents — Scope — Consultation of those pleadings and documents by persons other than the lawyers — Lawfulness — Conditions

(Instructions to the Registrar of the General Court, Art. 5(3) and (7))

6.      Proceedings — Reply — Formal requirements — Brief summary of the pleas in law on which the application is based — Reply referring to documents annexed to the pleadings — Admissibility — Conditions

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c))

7.      Actions for annulment — Actionable measures — Measures producing binding legal effects — Administrative procedure for the application of the competition rules — Measures taken during the inspection procedure — Acts not separable from the decision ordering the inspection — Inadmissibility

(Art. 230 EC; Council Regulation No 1/2003, Art. 18(1) and (3) and Art. 20(2) and (4))

8.      Actions for annulment — Actionable measures — Meaning — Measures producing binding legal effects — Measures altering the applicant’s legal situation — Decision refusing the protection of the confidentiality of communications between lawyers and their clients — Included — Conditions

(Art. 230 EC)

9.      Actions for annulment — Jurisdiction of the EU judicature — Claim seeking that directions be issued to an institution — Inadmissibility

(Art. 230 EC)

1.      The need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the activities of any person, whether natural or legal, constitutes a general principle of EU law.

Therefore, although in a decision ordering an inspection under Article 20(4) of Regulation No 1/2003 the Commission is not required to communicate to the recipient of the inspection decision all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, it must none the less clearly indicate the presumed facts which it intends to investigate.

The EU judicature may thus be called upon to review such a decision for the purposes of ensuring that it is in no way arbitrary, that is to say, that it has not been adopted in the absence of facts capable of justifying an inspection. In so far as the inspections carried out by the Commission are intended to enable it to gather the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which it already possesses certain information, the Court of the European Union must, in the course of that review, satisfy itself that there exist reasonable grounds for suspecting an infringement of the competition rules by the undertaking concerned.

(see paras 40, 42, 43, 72)

2.      Although, in a decision ordering an inspection under Article 20(4) of Regulation No 1/2003, the Commission is not required to delimit precisely the market covered by its investigation, it must, on the other hand, identify the sectors covered by the alleged infringement with which the investigation is concerned with a degree of precision sufficient to enable the undertaking in question to limit its cooperation to its activities in the sectors in respect of which the Commission has reasonable grounds for suspecting an infringement of the competition rules, justifying interference in the undertaking’s sphere of private activity, and to make it possible for the Court of the European Union to determine, if necessary, whether or not those grounds are sufficiently reasonable for those purposes.

(see para. 45)

3.      When the Commission carries out an inspection at the premises of an undertaking under Article 20(4) of Regulation No 1/2003, it is required to restrict its searches to the activities of that undertaking relating to the sectors indicated in the decision ordering the inspection and accordingly, once it has found, after examination, that a document or other item of information does not relate to those activities, to refrain from using that document or item of information for the purposes of its investigation.

First of all, if the Commission were not subject to that restriction, it would in practice be able, every time it has indicia suggesting that an undertaking has infringed the competition rules in a specific field of its activities, to carry out an inspection covering all those activities, with the ultimate aim of detecting any infringement of those rules which might have been committed by that undertaking. That is incompatible with the protection of the sphere of private activity of legal persons, guaranteed as a fundamental right in a democratic society.

(see paras 64, 65)

4.      As is apparent from the title of Regulation No 1/2003, the purpose of the powers conferred on the Commission by that regulation is the implementation of the competition rules laid down in Articles 81 EC and 82 EC. Those two provisions prohibit certain conduct on the part of undertakings in so far as it may affect trade between Member States and in so far as it has as its object or effect the prevention, restriction or distortion of competition within the internal market. Accordingly, the Commission can use its powers of inspection only for the purposes of detecting such conduct. The Commission thus cannot carry out an inspection at the premises of an undertaking if it suspects that there is an agreement or a concerted practice which produces effects exclusively on one or more markets outside the common market. On the other hand, there is nothing to prevent it from examining documents relating to those markets in order to detect conduct which is liable to affect trade between Member States and which has as its object or effect the prevention, restriction or distortion of competition within the common market.

(see para. 99)

5.      The authors of a legal opinion appended to a pleading of the parties who are not the lawyers of the parties or persons duly authorised by those lawyers to consult the file cannot be considered to be third parties with no right to access the file, for the purposes of Article 5(3) and (7) of the Instructions to the Registrar of the Court.

That provision requires that a party who is granted access to the procedural documents of other parties is entitled to use those documents only for the purpose of pursuing his own case and for no other purpose.

Therefore, the disclosure of procedural documents by a party to third persons in a situation where those documents were not communicated for the purposes of pursuing that party’s case constitutes an abuse of procedure. On the other hand, Article 5(3) and Article 5(7) of the Instructions to the Registrar of the Court do not preclude a party to a case from allowing an expert to consult a procedural document, where that is done with the aim of making it easier for that expert to draft a document for the purposes of defending that party’s case, and the document is used only for the purposes of the proceedings.

(see paras 107-109)

6.      See the text of the decision.

(see paras 112, 113)

7.      Any inspection ordered under Article 20(4) of Regulation No 1/2003 implies that a selection of documents will be examined and, depending on the case, copied, and that a selection of questions will be put to the employees or representatives of the undertakings concerned relating to the subject matter and purpose of the inspection. It is pursuant to the decision ordering the inspection, rather than pursuant to another distinct act adopted during the inspection, that those undertakings are required to allow the Commission to copy the documents at issue and to authorise their employees and representatives to provide the explanations requested.

It must therefore be held that the copying of each document and the asking of each question during an inspection are not to be regarded as acts separable from the decision under which the inspection was ordered but as measures implementing that decision.

Therefore, the decision to make copy-images of a number of computer files and of a hard drive of a computer, for the purposes of examining them later in the Commission’s offices, and the decision to interview an employee cannot be regarded as measures against which an action for annulment may be brought under Article 230 EC.

(see paras 121, 125, 132)

8.      The decision by which the Commission rejects the request for the protection, in accordance with the confidentiality of communications between lawyers and their clients, of documents which it had ordered be produced in the course of an inspection ordered under Regulation No 1/2003 produces legal effects for the undertakings concerned, in so far as the Commission is withholding the protection provided under Community law and the decision is definitive in nature and independent of the final decision making a finding of an infringement of the competition rules.

However, where the undertaking does not claim that the documents copied by the Commission or the information obtained by it were eligible, under EU law, for protection similar to that conferred on the confidentiality of communications between lawyers and their clients, the Commission, when it decides to copy those documents and to request the applicants to provide that information, does not adopt a decision withholding that protection from the applicants.

In such a case, the decision, adopted by the Commission, to copy documents or obtain information from the undertaking’s employees cannot be considered to be a measure against which an action for annulment can be taken under Article 230 EC.

(see paras 128, 129, 132)

9.      See the text of the decision.

(see para. 136)