ORDER OF THE GENERAL COURT (Fifth Chamber)

7 April 2025 (*)

( Action for annulment – Competition – Article 14(1) of Regulation (EC) No 139/2004 – Procedure to impose penalties on parties to a proposed concentration for providing incomplete, incorrect or misleading information in the course of a European Commission investigation – Decision of the Commission’s Hearing Officer to refuse access to certain documents in the investigation file relating to that proposed concentration – Act not open to challenge – Inadmissibility )

In Case T‑507/24,

Kingspan Group plc, established in Kingscourt (Ireland), represented by B. Meyring, I. Lunneryd and M.‑V. Puskás, lawyers,

applicant,

v

European Commission, represented by A. Boitos, B. Cullen and M. Domecq, acting as Agents,

defendant,

THE GENERAL COURT (Fifth Chamber),

composed of J. Svenningsen, President, J. Laitenberger (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: V. Di Bucci,

makes the following

Order

1        By its action under Article 263 TFEU, the applicant, Kingspan Group plc, seeks the annulment of the decisions of the European Commission of 19 July and 7 August 2024, adopted in Case M.10962 – Kingspan Group (Art. 14(1) proceedings) (‘Case M.10962’) implementing Article 14(1) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1), and by which the Commission refused Kingspan Group’s requests for disclosure of several documents in the file in Case M.9938 – Kingspan Group/Trimo (‘Case M.9938’).

 Background to the dispute

2        On 3 March 2021, the Commission received the notification of a proposed concentration (Case M.9938) by which the applicant proposed to acquire, for the purposes of Article 3(1)(b) of Regulation No 139/2004, sole control of Trimo, arhitekturne rešitve, d.o.o.

3        Following its preliminary investigation, by decision of 12 April 2021, the Commission found that the notified concentration raised serious doubts as to its compatibility with the internal market and the Agreement on the European Economic Area and decided to open an in-depth investigation pursuant to Article 6(1)(c) of Regulation No 139/2004.

4        On 31 March 2022, the Commission adopted a statement of objections, in accordance with Article 18 of Regulation No 139/2004.

5        On 21 April 2022, taking the view that the parties to the proposed concentration had demonstrated to its satisfaction that they had abandoned that plan, the Commission closed the proceedings without adopting a decision, in accordance with the last sentence of Article 6(1)(c) of Regulation No 139/2004.

6        After informing the applicant, on 9 November 2022, that it had opened an investigation under Article 14(1) of Regulation No 139/2004 (Case M.10962), and after carrying out several investigative measures in that regard, the Commission sent the applicant, on 19 March 2024, a statement of objections in which it took the preliminary view that the applicant had provided – intentionally or negligently – inaccurate, incomplete and misleading information in the course of its investigation in Case M.9938.

7        On 21 March 2024, the Commission granted the applicant access to the file in Case M.10962.

8        On 28 June 2024, the applicant requested access to certain documents that, in its view, were missing from the file in Case M.10962, namely, (i) the minutes of meetings and telephone calls between the Commission and third parties in Case M.9938, (ii) the minutes of meetings and telephone calls between the Commission and the applicant in Case M.9938 and (iii) the minutes of meetings and telephone calls between the Commission and the applicant’s counsel during that investigation.

9        On 10 July 2024, the Commission accepted the request for access to the minutes of meetings and telephone calls between its services and third parties that took place during the investigation in Case M.9938.

10      However, the Commission rejected the request for access to the minutes of meetings and telephone calls between its services and the applicant, on the one hand, and its services and the applicant’s counsel, on the other, which took place during the investigation in Case M.9938.

11      On 17 July 2024, pursuant to Article 7(1) of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29), the applicant requested the Commission’s Hearing Officer for competition proceedings (‘the Hearing Officer’) to send it the minutes of the meetings and telephone calls that took place during the investigation in Case M.9938 between, on the one hand, the Commission and itself and, on the other hand, the Commission and its counsel (‘the requested documents’).

12      By decision of 19 July 2024, adopted on the basis of Article 7(3) of Decision 2011/695, the Hearing Officer rejected the request for access to the requested documents.

13      On 5 August 2024, the applicant asked the Hearing Officer, in essence, to reconsider her position on the request referred to in paragraph 11 above and to confirm that the evidence gathered by the Commission in the investigation in Case M.9938 would not be used in the investigation in Case M.10962.

14      By decision of 7 August 2024, adopted on the basis of Article 7(3) of Decision 2011/695, the Hearing Officer again rejected the request for access to the requested documents. In addition, she informed the applicant that it should first have sent the Commission its request concerning the use, in the investigation in Case M.10962, of the evidence from the investigation file in Case M.9938.

15      On 7 August 2024, the Commission once more informed the applicant that it would not grant the request for access to the requested documents. It also rejected the applicant’s request concerning the failure to use, in the investigation in Case M.10962, evidence from the investigation file in Case M.9938.

 Forms of order sought

16      In the application, the applicant claims that the Court should:

–        annul the decision of 19 July 2024;

–        in the alternative, annul the decision of 19 July 2024 and the decision of 7 August 2024;

–        order the Commission to pay the costs.

17      In its plea of inadmissibility, the Commission contends that the Court should:

–        dismiss the action as inadmissible;

–        order the applicant to pay the costs.

18      In its observations on the plea of inadmissibility, the applicant claims that the Court should:

–        declare the action admissible;

–        annul the decision of 19 July 2024;

–        in the alternative, annul the decision of 19 July 2024 and the decision of 7 August 2024;

–        order the Commission to pay the costs.

 Law

19      Under Article 130(1) and (7) of the Rules of Procedure of the General Court, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case.

20      In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

21      In its plea of inadmissibility, the Commission submits that the decisions of 19 July and 7 August 2024 (‘the contested decisions’) are intermediate procedural measures concerning access to the file in an ongoing procedural investigation under Article 14(1) of Regulation No 139/2004 and that they are therefore not challengeable acts.

22      In its observations, the applicant submits that the action is admissible in so far as, first, the contested decisions are not intermediate procedural measures and, secondly, they have an immediate and irreversible impact on its legal situation, since they infringe its rights of defence.

23      According to the Court of Justice, the only measures or decisions that are capable of being the subject of an action for annulment under Article 263 TFEU are those which produce binding legal effects so as to affect the interests of an applicant by bringing about a distinct change in its legal position. Acts or decisions adopted by a procedure involving several stages, in particular where they are the culmination of an internal procedure constitute, in principle, acts that can be the subject of an action for annulment only if they are measures definitively laying down the position of the institution on the conclusion of that procedure. By contrast, a provisional measure intended to pave the way for the final decision cannot be the subject of an action for annulment (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraphs 9 and 10).

24      As regards, more specifically, Commission measures refusing access to the file to a party to the administrative procedure, even if they may constitute an infringement of the rights of the defence, it has been held that as a general rule such measures produce only limited effects, characteristic of a preparatory measure forming part of a preliminary administrative procedure (see, to that effect, judgment of 18 December 1992, Cimenteries CBR and Others v Commission, T‑10/92 to T‑12/92 and T‑15/92, EU:T:1992:123, paragraph 42; orders of 9 July 2003, Reisebank v Commission, T‑216/01, not published, EU:T:2003:200, paragraph 51, and of 27 January 2009, Intel v Commission, T‑457/08 R, not published, EU:T:2009:18, paragraph 53). Any infringement of the right of an addressee of a statement of objections effectively to put forward its views on the objections made by the Commission and on the evidence intended to support those objections is capable of producing binding legal effects of such a nature as to affect the interests of a party to the administrative procedure only if and when the Commission has adopted a decision finding the existence of the infringement of which it accuses the applicant (see, to that effect, order of 9 July 2003, Reisebank v Commission, T‑216/01, not published, EU:T:2003:200, paragraphs 51 and 56). Furthermore, until a final decision is adopted, it cannot be ruled out, particularly in the light of the written and oral observations of the party in question, that the Commission will grant access to the documents to which access was initially refused, so that the party may comment again on the objections communicated to it; the Commission may also decide, having regard in particular to that party’s written and oral observations, not to adopt an infringement decision (see, to that effect, order of 27 January 2009, Intel v Commission, T‑457/08 R, not published, EU:T:2009:18, paragraphs 53 and 57 and the case-law cited; judgment of 4 October 2018, Daimler v Commission, T‑128/14, EU:T:2018:643, paragraphs 68 and 69).

25      Consequently, in so far as the decision of 19 July 2024 and that of 7 August 2024, the content of which the applicant does not claim to be different from that of 19 July 2024, refuse it access to certain documents at a stage preceding the adoption of a decision bringing the infringement proceedings to an end, they are, in accordance with the abovementioned case-law, devoid of independent and immediate legal effects because they are intermediate in nature and do not therefore constitute acts against which an independent action may be brought.

26      None of the applicant’s arguments is capable of casting doubt on that finding.

27      First, it claims that the Commission fails, in its plea of inadmissibility, to examine the procedural background of the contested decisions, which leads it to construct an incorrect, or at the very least incomplete, framework for assessing the admissibility of the action, its own rights having already been impaired by the fact that the Commission had not produced the requested documents during the administrative procedure in Case M.9938.

28      In that regard, it must be emphasised that the analysis of whether or not the Commission committed a breach of procedure during the proceedings in Case M.9938 falls outside the scope of the present action, as defined by the applicant, which seeks the annulment of the contested decisions alone, relating to access to the file in Case M.10962.

29      Secondly, the applicant, relying on the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596, paragraph 116), asserts that the nature of the terms of reference of the Hearing Officer laid down by Decision 2011/695 is such that it confers on the Hearing Officer an actual degree of administrative independence, meaning that the contested decisions taken by the Hearing Officer must be regarded as acts which in themselves constitute the culmination of a special procedure distinct from that intended to enable the Commission to take a decision on the substance, which means that they must be considered challengeable acts.

30      In that regard, suffice it to note that the contested decisions do not constitute the culmination of a special procedure within the meaning of the case-law referred to by the applicant. They constitute preparatory measures adopted in the context of proceedings with a view to paving the way for a possible decision finding an infringement, in the context of which the intervention of the Hearing Officer, laid down by Decision 2011/695, is not severable from the proceedings initiated and conducted by the Commission, despite the latter’s independence vis-à-vis the Directorate-General for Competition (see, to that effect, order of 9 July 2003, Reisebank v Commission, T‑216/01, not published, EU:T:2003:200, paragraphs 59 and 60).

31      Thirdly, the applicant submits that its legal situation was immediately and irreversibly impacted by the contested decisions. In its view, its reputation is called into question by the proceedings in Case M.10962, so that, in so far as the contested decisions make it more difficult for it to defend itself, they should be subject to direct judicial review. It also states that the future report of the Hearing Officer and the existence of a future hearing in that case will give the Advisory Committee and the College of Commissioners the incorrect impression, before the adoption of a final decision, that its rights of defence have been respected. Finally, it submits that, since the existence of the requested documents – which, in its view, would be exculpatory as regards the objections at issue in Case M.10962 – has not been established, the current absence of those documents in the file cannot be remedied by the drawing up and then the making available, at a later stage of the proceedings, of documents which may have been drawn up only at that later stage. In view of the length of time that has elapsed since the meetings and telephone calls of which the documents at issue should give an account, such documents, drawn up subsequently, would not be capable of faithfully reflecting the content of the meetings and telephone calls in question.

32      In that regard, the Court notes that the applicant’s argument alleging damage to its reputation amounts to asserting that the very existence of the proceedings and their continuation adversely affects its rights, and they do so irrevocably. That is not the case, however, because during the proceedings and until any final decision becomes definitive, the applicant benefits from the presumption of innocence guaranteed by Article 48 of the Charter of Fundamental Rights of the European Union. In any event, if the Courts of the European Union were to find, in an action brought against a decision adopted at the end of the proceedings in Case M.10962, an infringement of the applicant’s rights of defence arising from the contested decisions, it would be possible to make good, in an action for damages, the economic damage that the applicant claims to have suffered as a result of the Hearing Officer’s refusal to grant it access to the requested documents, such as, inter alia, the loss of its reputation (see, to that effect, order of 9 July 2003, Reisebank v Commission, T‑216/01, not published, EU:T:2003:200, paragraph 57). The fact that the documents to which access was refused by the contested decisions do not exist at the present stage of Case M.10962 does not alter that finding. More specifically, as regards the argument that such documents, had they been drawn up by the Commission, could prove that, in the light of the information provided by the applicant in the proceedings in Case M.9938, no misperception could have arisen for the Commission officials to justify the initiation of the proceedings in Case M.10962, it must be held that, if the applicant submits, on the basis of its own documents, conclusive evidence to that effect, it would then be for the Commission to challenge it, with supporting evidence.

33      Fourthly, the applicant claims, relying on the judgment of the European Court of Human Rights of 4 April 2023, UAB Kesko Senukai Lithuania v. Lithuania (CE:ECHR:2023:0404JUD001916219, § 126), that where no final decision is adopted at the end of an administrative procedure, the lack of direct judicial review of measures adopted during that procedure that interfere with a party’s fundamental rights constitutes an infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Accordingly, the applicant considers that to regard the present action as inadmissible amounts to a denial of its right to an effective remedy.

34      In that regard, the Court observes that the case-law of the European Court of Human Rights cited by the applicant is not relevant for the purposes of the present case. That case-law concerns the lack of judicial review of the manner in which the officials of the Lithuanian Competition Council inspected the applicant’s premises, in the light of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which concerns the right to respect for private and family life. In that regard, it is sufficient to point out that the contested decisions do not relate in any way to inspections conducted by the Commission at the applicant’s premises, but to a refusal by the Commission to grant the applicant access to the file during the proceedings in Case M.10962. The two situations differ fundamentally in that inspections constitute limitations on the right to private and family life, which is not the case with a refusal to grant access to documents, since an infringement of the rights of the defence can be remedied, in the latter case, during the judicial review of any final decision or even an action for damages.

35      In the light of all the foregoing, the action must be dismissed as inadmissible for lack of a challengeable act.

 Costs

36      Under Article 134(1) 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.

37      Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by the Commission, in accordance with the form of order sought by the latter.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      Kingspan Group plc shall, in addition to bearing its own costs, pay those incurred by the European Commission.

Luxembourg, 7 April 2025.

*      Language of the case: English.