I. Introduction

II. Legal framework

III. Background to the dispute

A. Facts and administrative procedure

B. Proceedings at first instance before the General Court

IV. Procedure before the Court of Justice

V. Assessment

A. The complaints connected with the Commission’s powers of inspection in cartel proceedings (first to third grounds of appeal)

1. How the inspection proceeded in the present case

2. Taking copies without a prior examination as part of the Commission’s powers of inspection (first ground of appeal)

(a) Admissibility and relevance to the issues of the case of the first ground of appeal

(b) Substance of the first ground of appeal

3. Geographic limitation of the Commission’s powers of inspection (second and third grounds of appeal)

(a) Interpretation of Article 20(1) and (2) of Regulation No 1/2003 (second ground of appeal)

(b) The alleged geographic limitation of the inspection through the inspection decision itself (third ground of appeal)

B. The complaints relating to the fine (fourth and fifth grounds of appeal)

1. Exercise by the General Court of unlimited jurisdiction in respect of the fine (fourth ground of appeal)

2. Assessment of the European cartel configuration in respect of the fine (fifth ground of appeal)

C. Summary

VI. Costs

VII. Conclusion

1.

Is the European Commission permitted, during an inspection conducted in cartel proceedings pursuant to Article 20 of Regulation (EC) No 1/2003, ( 2 ) to take copies of data at an undertaking without examining beforehand whether those data are relevant to the subject matter and purpose of the inspection concerned, and is it then permitted to take away those copies to search subsequently for material relevant to that subject matter and purpose at its premises in Brussels (Belgium)? That is, in essence, the legal question which the Court is called upon to address in the present appeal proceedings. ( 3 )

2.

That question has arisen against the background of a cartel proceeding relating to power cables in which, by decision of 2 April 2014, the Commission imposed penalties on the main European, Japanese and South Korean producers of high and extra high voltage submarine and underground power cables, including Nexans France SAS and Nexans SA, the appellants in the present case (together ‘Nexans’ or ‘the appellants’), for their participation in an almost worldwide cartel (‘the decision at issue’). ( 4 )

3.

At first instance the General Court dismissed the action brought by Nexans against the decision at issue by judgment of 12 July 2018 (‘the judgment under appeal’). ( 5 ) Nexans claims that the General Court not only erred in law in interpreting the Commission’s powers of inspection, but also exercised incorrectly and inadequately its own unlimited jurisdiction in respect of the fine set by the Commission.

4.

The importance of the Court’s judgment in the present appeal proceedings for the Commission’s future administrative practice when conducting inspections in cartel proceedings should not be underestimated.

5.

The legal framework for the present case is defined by Article 101 TFEU and Regulation No 1/2003.

6.

Article 20 of Regulation No 1/2003 is headed ‘the Commission’s powers of inspection’ and, in paragraphs 1, 2 and 4, provides as follows:

‘1.   In order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.

2.   The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:

…

4.   Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.’

7.

Article 21 of Regulation No 1/2003 is entitled ‘Inspection of other premises’ and, in paragraphs 1 and 4, provides as follows:

‘1.   If a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection, which may be relevant to prove a serious violation of Article 81 or Article 82 of the Treaty, are being kept in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned, the Commission can by decision order an inspection to be conducted in such other premises, land and means of transport.

…

4.   The officials and other accompanying persons authorised by the Commission to conduct an inspection ordered in accordance with paragraph 1 of this Article shall have the powers set out in Article 20(2)(a), (b) and (c). …’

8.

In October 2008, ABB notified the Commission of anti-competitive practices in the submarine and underground power cable market. ( 6 )

9.

Subsequently, by Decision C(2009) 92/1 of 9 January 2009, the Commission ordered Nexans and all companies controlled by it to submit to an inspection in accordance with Article 20(4) of Regulation No 1/2003 (‘the inspection decision’). ( 7 ) Between 28 and 30 January 2009 and on 3 February 2009, the Commission then carried out the inspection at the premises of Nexans France ( 8 ) and made copies of certain data which it analysed only later in Brussels. ( 9 )

10.

By judgment of 14 November 2012, Nexans France and Nexans v Commission, ( 10 ) the General Court partially annulled the inspection decision addressed to Nexans, in so far as it concerned electric cables other than high voltage underwater and underground electric cables and the material associated with those other cables. The General Court dismissed the action as to the remainder. The appeal brought against that judgment by Nexans was unsuccessful. ( 11 ) In those judgments, the questions that are raised in the present proceedings relating to the legality of the Commission’s actions during the inspection were not addressed. ( 12 )

11.

On 2 April 2014, the Commission adopted the decision at issue. It found that in different periods from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a cartel concerning high and extra high voltage submarine and underground power cables, consisting of two configurations: on the one hand the ‘A/R cartel configuration’, which involved the European, Japanese and South Korean undertakings and had the objective of allocating territories and customers among those producers, and on the other hand the ‘European cartel configuration’, which involved the allocation by the European producers of territories and customers within their ‘home territory’. ( 13 )

12.

In calculating the basic amounts of the fines, in view of the gravity of the infringement consisting in market sharing, the Commission set a percentage of 15% of the relevant sales. It also increased the gravity percentage by 2% for all participants on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, the entire territory of the European Economic Area (EEA). Lastly, it considered that the conduct of the European undertakings had been more detrimental than that of the other undertakings inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission increased the proportion of the value of sales by a further 2% to reflect the gravity of the infringement in relation to the European undertakings. ( 14 )

13.

On 17 June 2014, Nexans brought an action for annulment of the decision at issue at first instance before the General Court. The action was dismissed by the General Court on 12 July 2018 by the judgment under appeal and the applicants were ordered to pay the costs.

14.

By written pleading of 24 September 2018, Nexans brought an appeal against the judgment under appeal.

15.

Nexans claims that the Court should:

16.

The Commission contends that the Court should:

17.

The appeal was examined before the Court of Justice on the basis of the written documents and, on 16 October 2019, at a hearing.

18.

Nexans raises five grounds of appeal in total, the first three of which concern the Commission’s powers of inspection in cartel proceedings (see A below). The last two grounds of appeal relate to the setting of the fine (see B below).

19.

The present appeal raises, for the first time apparently, the question whether Regulation No 1/2003 confers on the Commission, during an inspection conducted in cartel proceedings, the power not only to inspect and evaluate the original data on-the-spot at the premises of the undertaking concerned, but also to copy data and subsequently search, at its premises in Brussels, for documents relevant to the subject matter and purpose of the inspection concerned, which are then placed in the file.

20.

That corresponds to the Commission’s actions in the present case, which were confirmed by the General Court in the judgment under appeal. By its first to third grounds of appeal, Nexans alleges that in doing so, the General Court made a number of errors in law.

21.

First, Nexans criticises the fact that the Commission copied data without having examined beforehand whether those data were relevant to the subject matter and purpose of the inspection (first ground of appeal). Second, Nexans considers that, in the absence of a legal basis, the Commission did not have the power to continue the inspection in Brussels, outside the premises of the undertaking (second ground of appeal). According to Nexans, that also did not fall within the terms of the inspection decision itself (third ground of appeal).

22.

Before considering those grounds of appeal, it makes sense briefly to outline how the Commission’s inspection and the subsequent examination of the data copied during that inspection actually proceeded in the present case.

23.

According to the factual findings made by the General Court in paragraphs 42 to 47 of the judgment under appeal, ( 15 ) which are not contested by Nexans in the present appeal proceedings, the inspection carried out by the Commission from Wednesday 28 to Friday 30 January and on Tuesday 3 February 2009 at the premises of Nexans France and the subsequent examination at the Commission’s premises in Brussels of the data copied during that inspection proceeded as set out below.

24.

After arriving at Nexans, the inspectors stated that they wished to examine the documents and the computers of certain employees, namely Mr R., Mr B. and Mr J. At that time, Mr J. was on leave, however. Using forensic information technology, the Commission then took copy-images of the hard drives of the computers of Mr R., Mr B. and Mr D. in the meeting room made available to them so that they were able to carry out a keyword search on the basis of indexation. The indexation was to finish on the second day. At the end of the first day of the inspection, the Commission sealed Mr J.’s office and the meeting room. On the second day of the inspection, the search for information on those copy-images continued. At the end of the day, the meeting room made available to the Commission was sealed once more.

25.

The computer of Mr J. could not be accessed until he returned from leave on the third day of the inspection, Friday 30 January 2009. Initially, no copy-image of the content of that computer was made. However, by using forensic information technology it was possible for the files, documents and emails that had been deleted to be looked at and to determine that those documents were relevant to the investigation. The inspectors decided to make a copy-image also of that hard drive but, by that point in the investigation, they no longer had sufficient time to make such a copy. Selected data were therefore copied and placed on data-recording devices, which were then placed in envelopes, sealed and taken back to Brussels. Mr J.’s computer and a data-recording device found in his office were placed back in a cupboard at Nexans France, which was sealed. The hard drives of the Commission’s computers used for the purpose of the searches were subsequently wiped and, after that process, no longer contained any of the files taken during the inspection.

26.

The Commission’s representatives then returned to the premises of Nexans France on Tuesday 3 February 2009, opened the sealed cupboard and made copy-images of the hard drive of Mr J.’s computer, which they subsequently took back to Brussels in sealed envelopes.

27.

Later, in its offices in Brussels on 2 March 2009, the Commission opened the sealed envelopes in the presence of Nexans’ lawyers. The Commission examined the data-recording devices contained in those envelopes for eight days, up to and including 11 March 2009. Each day before the start of the examination the seal was removed from the office in which the examination took place and that office was sealed again at the end of the day. Nexans’ lawyers were present at the removal and application of such seals and at all times. The documents recorded on those data-recording devices were examined and the inspectors printed out those which they considered relevant for the purposes of the investigation. A second paper copy and a list of those documents were given to Nexans’ lawyers. At the end of that process, the hard drives of the computers on which the Commission’s inspectors had worked were wiped.

28.

In the present appeal proceedings, the appellants acknowledge that the Commission did not place any data or documents in the file without a prior examination. Nor do they allege any infringement of their rights of defence or question whether the same procedural safeguards were ensured in the examination of the data copied at Nexans at the Commission’s premises in Brussels (such as the sealing of all examined items and the presence of lawyers) as would have been the case for an examination at their own premises. The appellants consider, however, that the Commission’s actions did not fall within the powers conferred on that institution by Regulation No 1/2003. They therefore contend that the Commission acted ultra vires, which is not altered by the fact that there was no infringement of rights of defence in the present case.

29.

In essence, the first three grounds of appeal raised by Nexans all concern the question whether, during an inspection, the Commission may take copies of hard drives without having first examined them and only having sorted the data relevant to the investigation and whether it may then take away and examine those copies at its own premises in Brussels. By its first ground of appeal, Nexans specifically disputes the Commission’s power to take copies of data where their relevance to the investigation in question has not been examined beforehand.

30.

In that context it appears perfectly sensible to assess separately the operations of copying data without a prior examination, on the one hand, and of then examining those copies at the Commission’s premises, on the other, even though those operations are undoubtedly closely linked to one another. It is quite conceivable that the Commission copies data without having examined them beforehand in order to examine that data in the subsequent on-the-spot investigation. That is, moreover, how it handled some of the data in the present case. ( 16 ) Such an approach makes it possible, in particular, to make workstations and equipment available again during an ongoing inspection.

31.

Before considering the substance of the first ground of appeal, however, it is necessary first to examine three objections raised by the Commission in respect of its admissibility and relevance to the issues of the case.

32.

First of all, the Commission questions the admissibility of the first ground of appeal because it seeks no more than a re-examination of the action put before the General Court.

33.

That objection is not convincing, however, as the points of law examined at first instance may be raised again in the course of an appeal, provided that the appellant challenges the interpretation or application of EU law by the General Court. ( 17 )

34.

In the present case, in questioning whether the Commission may take copies of hard drives which it has not examined beforehand, the first ground of appeal concerns the scope of that institution’s powers under Article 20(2) of Regulation No 1/2003, which is a point of law. The appellants are thus compelled to repeat their submissions put forward in that regard at first instance and to rely on arguments already made at that stage in order to have the Court of Justice answer that question of interpretation.

35.

The Commission further asserts that the appellants raised for the first time in the present appeal the complaint of a breach of confidentiality of lawyer-client communication.

36.

That argument also cannot be accepted.

37.

It is true that, under Article 127(1) in conjunction with Article 190 of the Rules of Procedure of the Court of Justice, no new pleas in law may be put forward on appeal. However, the purpose is merely to ensure that the subject matter of the proceedings is not extended beyond the pleas argued at first instance. ( 18 ) A plea is therefore admissible provided it is an amplification of an argument already made in the application at first instance. ( 19 )

38.

In the present case, the argument that copying documents without a prior examination could entail a breach of legal privilege because documents protected by legal privilege could also be copied is so closely connected with the first ground of appeal that it does not constitute a separate new plea in law. Rather, that argument supplements the complaint regarding the action of copying data without a prior examination by including the consequences potentially associated with such action.

39.

Lastly, the Commission maintains that the first ground of appeal is ineffective because the appellants do not contest the findings made by the General Court in paragraphs 52 to 59 of the judgment under appeal. According to those findings, the copying of data is merely an intermediate stage which is technically necessary for the indexation of the data and in any case the Commission did not place any documents in the investigation file without having examined beforehand whether they were relevant to the subject matter of the inspection. Consequently, in the view of the Commission, even the finding that the prior copying was unlawful could not result in the evidence in question being inadmissible.

40.

That objection must also be rejected.

41.

First, the question whether an appeal is wholly or partially ineffective concerns the capability of the arguments raised to found that appeal and therefore cannot be considered separately from the merits of the complaints raised individually in the appeal. ( 20 )

42.

Second, the finding that the Commission did not have the power to copy data without a prior examination is very likely to affect the continued validity both of the judgment under appeal and of the decision at issue. Even if at the end of the process the Commission placed only examined documents in the investigation file, that does not alter the fact that it was possible to take away the copies to Brussels and to uncover the relevant evidence there only as a result of the extensive copying of the hard drives. If the original copying did not fall within the scope of the Commission’s powers, that would therefore inevitably raise the question of the admissibility of the evidence on which the decision at issue is based.

43.

The first ground of appeal is thus admissible and could, in the event that it proves to be well founded, result, as the case may be, in the setting aside of the judgment under appeal and the annulment of the decision at issue.

44.

According to Nexans’ main complaint in its first ground of appeal, a mandatory sequence of actions to be taken during an inspection can be inferred from both the wording and the scheme of Article 20(2) of Regulation No 1/2003. In that sequence, as a first step, the relevance to the investigation concerned of all data and documents inspected at an undertaking is to be examined and only as a second step may copies be taken exclusively of data and documents which have been found to be relevant and are therefore to be placed in the file.

45.

The General Court rejected that assertion in paragraphs 52 to 59 of the judgment under appeal, in essence on the ground that it is not to be inferred from Article 20(2)(b) and (c) of Regulation No 1/2003 that the Commission’s power to take copies of the books and records related to the business of an undertaking under inspection is limited to the books and records related to the business that it has already reviewed. Rather, according to the General Court, taking copies without a prior examination falls within the scope of the powers provided for in Article 20(2)(b) and (c) of Regulation No 1/2003, provided making those copies serves the purpose of conducting the investigation, in particular the indexation of data using information technology, and ultimately no documents are placed in the investigation file which have not been examined beforehand as to their relevance to the subject matter of the inspection in question.

46.

Those statements contain no error in law.

47.

It should be stated, first of all, that while Nexans’ argument based on the wording of Article 20(2)(b) and (c) of Regulation No 1/2003 holds in relation to the version of the regulation in the language of the case in the present appeal, namely English, and in relation to some other language versions, it does not withstand an overall analysis of all the language versions of Regulation No 1/2003.

48.

Nexans asserts that it is clear from the use of the words ‘such books or records’ in the relevant language versions of Article 20(2)(c) of Regulation No 1/2003 that the power to take copies provided for therein relates only to the books and records related to the business mentioned in Article 20(2)(b) and which have already been examined in accordance with Article 20(2)(b).

49.

The Commission contends that the use of the words ‘such books or records’ in the relevant language versions of Article 20(2)(c) of Regulation No 1/2003 can be explained because the intention is to refer to the ‘books and other records related to the business’ mentioned in Article 20(2)(b).

50.

On closer inspection, however, it is apparent that both the first and the second argument find support only in some, but not in all language versions of Article 20(2)(b) and (c) of Regulation No 1/2003 and that an overall analysis of those versions rather gives a somewhat inconclusive picture as regards the references made in that provision. Thus, most, ( 21 ) but not all ( 22 ) versions of Article 20(2)(c) make a reference, by using the word ‘such’ or similar terms, to the preceding point (b) of that paragraph and, in addition, in some versions of point (c) the expression ‘records related to the business’ used in the preceding point (b) is simply repeated. ( 23 )

51.

An interpretation whereby copies could be taken under Article 20(2)(c) of Regulation No 1/2003 only of documents previously examined pursuant to point (b) of that paragraph is, as far as can be seen, expressly supported only by the wording of the Portuguese version of Article 20(2)(c), which refers to the ‘reviewed documents’. ( 24 ) Given that all the other language versions are unclear in that regard, it is not possible, however, to infer the intention of the author of that provision from the wording of the Portuguese version alone. ( 25 )

52.

Rather, in those circumstances it simply cannot be inferred purely from the wording of Article 20(2)(b) and (c) whether or not the power to take copies laid down in point (c) applies only to documents already examined pursuant to point (b). Accordingly, in order to determine the intention of the author of that provision, regard must be had to the scheme and the context of the rules of which it is part and the objectives pursued by those rules. ( 26 )

53.

It should be stated in that regard, first, that the Commission has the inspection powers provided for in Regulation No 1/2003 so as to enable it to perform its task of protecting the common market from distortions of competition and to penalise any infringements of the competition rules on that market. ( 27 )

54.

Second, it should be borne in mind that, although in competition law the proceedings inter partes are not initiated until the statement of objections, the Court of Justice has nevertheless expressly stated that the rights of defence of the undertakings concerned must also be safeguarded during preliminary inquiry procedures. As the General Court correctly stated in paragraph 80 of the judgment under appeal, it is necessary to prevent the rights of the defence from being irreparably prejudiced during preliminary inquiry procedures. That is the case in particular for inspections, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings. ( 28 ) The powers enjoyed by the Commission in connection with inspections are therefore clearly circumscribed. ( 29 )

55.

Accordingly, the Commission’s inspection decisions are subject to strict requirements relating to the stating of reasons. At that stage, the Commission is not required to show any full, final legal assessment of the facts alleged to constitute an infringement which are to be imputed to the undertaking concerned ( 30 ) and also has the power to search for various sources of information which are not already known or fully identified. ( 31 ) However, in its inspection decisions it must specify the subject matter and the purpose of the inspection concerned, so as to enable the undertakings concerned to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence. ( 32 ) Thus, the Commission is obliged to indicate as precisely as possible the evidence sought and the matters to which the investigation must relate, and cannot under any circumstances carry out inspections on a speculative basis without having any concrete suspicions, so-called ‘fishing expeditions’. ( 33 )

56.

During an inspection the Commission may therefore make a search for, place in the file and subsequently use as evidence solely documents which are relevant to the subject matter and purpose indicated in the inspection decision. Only then can it be ensured that no evidence is used in subsequent cartel proceedings that was obtained in breach of the rights of defence of the undertakings concerned. ( 34 ) Thus, fortuitous discoveries made by the Commission during an inspection which have a different subject matter from that of the inspection concerned may be used only to substantiate initial suspicions and to open a new investigation with a different subject matter. ( 35 )

57.

Against that background, there is no doubt that the Commission cannot under any circumstances place documents in the file and subsequently use them as evidence, unless the relevance of those documents to the subject matter of the inspection concerned has been examined beforehand. Otherwise all the procedural safeguards for the undertakings concerned would be deprived of their substance and the floodgates would be opened to the use of unlawfully obtained evidence.

58.

The scheme of Article 20(2) of Regulation No 1/2003 thus certainly suggests a logical sequence of procedural steps to be taken in an inspection, such that in any event data and documents must first be examined as to their relevance to the subject matter of the investigation in question before being placed in the Commission’s file. Contrary to the argument made by Nexans, however, Article 20(2) does not indicate a mandatory chronological sequence whereby data must always be examined first before they can be copied. That is the case in particular where copies are taken initially purely for examination purposes.

59.

In such a case it appears to be a disproportionate limitation of the Commission’s powers to deny it the possibility of copying data without a prior examination, provided it is ensured that that is merely a technical intermediate step as part of the examination of the data and ultimately no documents are placed in the file without a prior examination. The appellants do not dispute that that was so in the present case. ( 36 )

60.

It is true that an inspection entails an intervention in the privacy of the undertaking and that the need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural or legal, constitutes a general principle of EU law, ( 37 ) which is now codified in Article 7 of the Charter of Fundamental Rights of the European Union.

61.

That does not mean, however, that the Commission’s powers under Article 20 of Regulation No 1/2003 must be interpreted narrowly per se, as Nexans claims. Rather, those powers are to be interpreted and applied in such a way that strict respect for the rights of the undertakings concerned is guaranteed. The limitations to which the exercise of the Commission’s powers is subject in the present context are not an end in themselves, but serve to ensure that those rights are respected. ( 38 )

62.

Yet the rights of defence and the protection of rights such as legal privilege invoked by Nexans or the right to the protection of private life claimed in the parallel case Prysmian and Prysmian Cavi e Sistemi v Commission ( 39 ) are safeguarded if, as in the present case, the Commission copies data without a prior examination, but then assesses whether the data is relevant to the subject matter of the inspection in strict compliance with the relevant safeguards applying to the undertakings concerned, in particular doing so only in presence of their lawyers, before documents found to be relevant are placed in the file and the remainder of the copied data is deleted.

63.

Even if the hard drives relating to the business also contain private data or data protected by legal privilege which are also copied in the first step, under such an approach documents constituting possible evidence are separated from the remaining data in the sifting operation which follows the copying and the latter data are deleted, as happened in the present case. ( 40 ) Such copying for sifting purposes does not therefore constitute any greater intervention than the sifting itself.

64.

Furthermore, contrary to the underlying allegations made by the appellants and as the Commission submits in the present appeal proceedings without being challenged by the appellants, it certainly did not arbitrarily ‘suck up’ the entirety of the data on all Nexans’ data carriers and drives indiscriminately and at random, as if with a huge data vacuum cleaner. Instead, the Commission copied solely data which had been identified as potentially relevant to the subject matter of the investigation because they were on computers or data carriers of persons who had played a key role in the suspected infringement to be investigated by the inspection. ( 41 )

65.

In addition, as the Commission also correctly states, the indexation of data using information technology and the subsequent sifting of the indexed data can take a considerable time, especially since undertakings now store substantial quantities of data electronically. It therefore appears to be perfectly sensible to copy data in order to be able immediately to make available the devices or data carriers on which the data were originally stored so as not to tie them up for the entire duration of the inspection.

66.

Against that background, a general prohibition on copying data without a prior examination appears to be an inappropriate and thus unjustified obstacle to the exercise of the Commission’s powers of inspection which would exceed what is necessary to protect the rights of the undertakings concerned. Such a prohibition would therefore unduly restrict the effectiveness of investigations as a necessary tool for the Commission in carrying out its role as guardian of the Treaties in competition matters. ( 42 )

67.

In conclusion, it must therefore be stated that the Commission is entitled, on the basis of Article 20(2)(c) of Regulation No 1/2003, to take copies of data as an intermediate step in the analysis of the data concerned, provided that appears appropriate for the conduct of the relevant inspection, no data are placed in the file which have not been examined beforehand as to their relevance to the subject matter of the relevant inspection and all other data are deleted after the sifting operation. If that is ensured, there appears to be no need to require the Commission to show that the copying of the data was not only appropriate, but also absolutely necessary, because it would have been impossible to conduct the inspection without the prior copying of the data.

68.

In the light of the above considerations, the first ground of appeal must be rejected as being unfounded.

69.

The foregoing considerations do not, however, answer the question whether the Commission is then required to examine the copied data at the premises of the undertaking or whether it is permitted to examine the data at its own premises in Brussels.

70.

The appellants object to an examination at the Commission’s premises in their second and third grounds of appeal, relying in particular on the wording of Article 20(1) and (2) of Regulation No 1/2003, schematic inconsistencies if that were to be interpreted broadly and the wording of the inspection decision itself.

71.

In paragraphs 60 to 64 of the judgment under appeal, the General Court rejected Nexans’ argument that the Commission does not have the power, during an inspection, subsequently to examine data copied at an undertaking at its premises in Brussels. The General Court argued, in essence, that it does not follow from Article 20(2)(b) of Regulation No 1/2003 that the examination of the books and records related to the business of an undertaking must be carried out exclusively at the premises of the latter. Rather, according to the General Court, that provision solely requires the Commission to provide, when examining documents at its own premises, the same safeguards to undertakings under inspection as those required during an on-the-spot examination, as was so in the present case.

72.

Those statements are also not vitiated by any error in law.

73.

Thus, first, contrary to the view taken by Nexans, it cannot be inferred from the wording of Article 20(1) of Regulation No 1/2003, under which the Commission ‘may conduct all necessary inspections of undertakings’, that the entire inspection must take place at the premises of the undertaking.

74.

It is true that by using the expression ‘of undertakings’, the wording of Article 20(1) of Regulation No 1/2003 does establish a link to the premises of the undertakings under inspection. That is only logical, however, as an inspection inevitably begins at the premises of an undertaking. On the other hand, that wording does not mean that data copied at the premises of an undertaking cannot subsequently be examined at the Commission’s premises to ascertain whether they are relevant to the subject matter of the inspection concerned.

75.

The same holds for the general scheme of Article 20(2) of Regulation No 1/2003. It is clear from that scheme that the legislature intended, by that provision, to lay down the powers (to enter premises, examine documents, take copies, seal premises and documents, question representatives of the undertaking) necessary for the Commission to conduct inspections at the premises of the undertakings concerned. That also does not however preclude the continuation at the Commission’s premises of an inspection begun at the premises of an undertaking.

76.

Indeed, it does not appear that continuing the inspection at the Commission’s premises in that manner would constitute an additional intervention in the rights of the undertakings concerned, compared with conducting the inspection at the premises of the undertakings themselves, which is so serious that the relevant power would have to be laid down explicitly and could not be inferred implicitly from the powers provided for in Article 20(1) and (2) of Regulation No 1/2003, if they are interpreted in the light of the need to protect the undertakings’ rights.

77.

That is all the more so because, as has already been mentioned, the powers provided for in Regulation No 1/2003 are intended to enable the Commission to combat anti-competitive practices efficiently. ( 43 ) Particularly in the light of the volume of electronic data produced and stored by undertakings, which has grown significantly since the entry into force of Regulation No 1/2003, it thus appears perfectly justified to permit the Commission to carry out the time-consuming examination of such data at its own premises so as not to tie Commission staff unduly to the premises of the undertakings being inspected, which may also give rise to high costs.

78.

Accordingly, it does not appear to be necessary to restrict the Commission’s power to inspect data at its own premises to cases where, for example, it is impossible for technical reasons to examine the data concerned on-the-spot. The Commission’s approach of examining data at its own premises and not at the premises of the undertaking concerned must nevertheless appear to be appropriate and justified having regard to the circumstances of the specific case, for example because even after the Commission has conducted an on-the-spot examination for some time, a large volume of data remains to be inspected.

79.

In the present case, the justification also stems from the fact that the data in question became available only towards the end of the examination at the undertaking’s premises. ( 44 ) Likewise, an examination at the Commission’s premises appears to be more justified where, as in the present case, the undertaking is already represented by lawyers based in Brussels who can monitor the examination of the data without significant effort.

80.

The appellants have not put forward any evidence to demonstrate that it was not appropriate in the present case to continue the inspection at the Commission’s premises, but that that was solely for the ‘convenience’ of the Commission.

81.

As with the copying of data discussed above, ( 45 ) however, it is also crucial for the examination of the data at the Commission’s premises that that approach does not entail any infringement of the rights of defence of the undertakings concerned.

82.

In that respect, as the General Court correctly stated in paragraph 60 of the judgment under appeal, while inspecting data at the Commission’s premises the same procedural safeguards in favour of the undertakings concerned must be observed as at their own premises. As has been explained above, it is crucial during an inspection that only documents which are demonstrably relevant to the subject matter and purpose indicated in the inspection decision are placed in the file, as only then can it be ensured that no evidence is used in subsequent proceedings that was obtained in breach of the rights of defence of the undertakings concerned. ( 46 ) To that end, it is essential that the undertakings’ lawyers are present at all times during the sifting of all data and documents by the Commission and are able to check which documents are found to be relevant by the Commission.

83.

Accordingly, the fact that the Commission takes away data copied at an undertaking to its premises in Brussels and examines them there certainly cannot mean that the data are removed from the control of the undertaking concerned and inspected by the Commission at its discretion. Instead, it must be ensured that the Commission transports the data in sealed containers and then inspects them exclusively in the presence of the undertaking’s lawyers, as happened in the present case. ( 47 ) As the Commission correctly stated at the hearing, such sealed transportation of data also creates continuity between the inspection begun at the undertaking’s premises and continued at the Commission’s premises.

84.

Furthermore, it would also not be compatible with the need to safeguard the rights of defence of the inspected undertakings if conducting the inspection at the Commission’s premises in Brussels entailed disproportionate burdens or costs for those undertakings. Undertakings are subject to a duty to cooperate during inspections by the Commission. However, that must be limited to reasonable requests for assistance made by the Commission and cannot result in the undertakings being unduly burdened. ( 48 )

85.

Nexans asserts in that regard that if the Commission could examine data copied at an undertaking’s premises at the Commission’s premises in Brussels pursuant to Article 20(2)(b) and (c) of Regulation No 1/2003, the Commission’s right under point (e) of that paragraph to question the employees of the undertaking under inspection would also apply at the Commission’s premises. However, that would appear to be incompatible with the exhaustive rules regarding the Commission’s powers of investigation.

86.

Having regard to the precursor provision in Article 14(1)(c) of Regulation No 17, ( 49 ) it must be stated that the passage still to be found there, according to which oral explanations may be asked for ‘on the spot’, was not included in Article 20(2)(e) of Regulation No 1/2003. Against that background, interviews with undertakings’ employees taking place in Brussels on the basis of that provision do not appear to be precluded per se. However, that applies solely provided the resulting effort required of the undertaking is not disproportionate.

87.

Similarly, the need for the lawyers of the undertakings concerned to be present in Brussels throughout the duration of the inspection at the Commission’s premises, and in particular the associated costs, cannot represent a disproportionate burden on those undertakings compared with an examination at their own premises.

88.

In the present case, however, Nexans has not presented any evidence to show that the inspection at the Commission’s premises placed a disproportionate burden on it and no evidence to that effect is otherwise apparent.

89.

Finally, in contrast to the arguments put forward by Nexans, an interpretation of Article 20(1) and (2) of Regulation No 1/2003 according to which the Commission may continue an inspection at its own premises is also not contrary to other provisions of that regulation.

90.

According to Nexans, Article 21(4) of Regulation No 1/2003, which refers, in respect of ‘inspection of other premises’, to the powers set out in Article 20(2)(a) to (c) of Regulation No 1/2003, would be meaningless if it were to be inferred from Article 20 itself that the Commission is empowered to examine documents outside the premises of the undertaking.

91.

As the Commission correctly states, however, Article 21 of Regulation No 1/2003 concerns a completely different situation to an inspection under Article 20 of that regulation. Article 21 authorises the Commission to conduct inspections and to take evidence in premises other than the undertaking’s business premises, such as the homes or means of transport of the undertaking’s employees, and refers in that regard to the powers under Article 20(2)(a) to (c). An interpretation of Article 20(2)(b) whereby an examination of data copied at the undertaking’s premises in accordance with point (c) of that paragraph may be continued outside those premises consequently has no effect on the scope of Article 21 of Regulation No 1/2003.

92.

In conclusion, therefore, the Commission is empowered under Article 20(1) and (2) of Regulation No 1/2003 to examine data copied during an inspection at the premises of an undertaking subsequently at its own premises, provided that appears appropriate for the conduct of the inspection concerned and the undertaking under inspection is accorded the same safeguards as for an examination at its own premises. If that is ensured, there appears to be no need, moreover, to require the Commission to show that it would have been completely impossible to conduct the inspection at the premises of the undertaking.

93.

Accordingly, the second ground of appeal must also be rejected as being unfounded.

94.

By their third ground of appeal, the appellants assert that the General Court erred in law by rejecting their argument that a limitation of the Commission’s power of examination to the premises of Nexans also follows from the wording of the inspection decision itself, which states that ‘the inspection can take place in all premises controlled by the company, and in particular at the offices located at the following address: …’. ( 50 )

95.

The General Court rejected that assertion in paragraph 67 of the judgment under appeal on the ground that it is certainly apparent from the inspection decision that the inspection could take place in all the abovementioned premises, but not that the inspection was required to be conducted exclusively there. Therefore, according to the General Court, that decision did not rule out the possibility of the Commission continuing the inspection in Brussels.

96.

Contrary to the assertion made by Nexans, that finding contains no error in law.

97.

As the Commission correctly argues with reference to the General Court’s judgment in Minoan Lines v Commission, which is cited by Nexans itself, the sole purpose of such a statement is to authorise the Commission to enter the premises of the named legal entity, but solely of that entity. That means that the Commission may not, on the basis of such a decision, enter the premises of a legal entity other than the named entity or conduct inspections there. ( 51 )

98.

The inspection decision thus does not preclude the Commission from examining data copied at the undertaking named in that decision subsequently at its own premises, provided it is also ensured that the data are at no time removed from the control of that undertaking, as was so in the present case. ( 52 )

99.

Furthermore, the appellants’ assertion that the inspection decision should have been adopted on the basis of Article 21 and not Article 20 of Regulation No 1/2003 in order to cover an examination at the Commission’s premises is also incorrect. As has already been explained, ( 53 ) Article 21 concerns the conduct of inspections in premises other than the premises of the undertaking, such as the homes or means of transport of the undertaking’s employees, and thus a completely different situation to that in which an inspection begun at the premises of an undertaking on the basis of Article 20 is continued at the Commission’s premises.

100.

The third ground of appeal must therefore also be rejected as being unfounded.

101.

By their fourth and fifth grounds of appeal, the appellants dispute the General Court’s findings relating to the calculation of the fine. The fourth ground of appeal concerns the unlimited jurisdiction of the General Court in respect of the fine set by the Commission, while the fifth ground of appeal relates to an alleged error of assessment by the General Court.

102.

In their fourth ground of appeal, the appellants complain that the General Court misconstrued the scope of its unlimited jurisdiction in respect of the setting of the fine by the Commission under Article 261 TFEU in conjunction with Article 31 of Regulation No 1/2003.

103.

It should be noted at the outset that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine. ( 54 )

104.

In the present case, in the view of the appellants, the basic amount of the fine, which was set at 15% of the relevant sales, should have been reduced because they claim that the infringement had no or only limited effects on the relevant market. Yet they contend that the General Court merely made reference, in paragraph 156 of the judgment under appeal, to point 22 of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (‘the 2006 Guidelines’), ( 55 ) where there is no mention of an infringement’s impact on the market as a factor determining the amount of the fine. According to the appellants, because it neither examined their argument nor exercised its unlimited jurisdiction over the Commission’s decision, the General Court thus erred in law.

105.

The prospect of success of that argument depends on whether one relies on the version of paragraph 156 of the judgment under appeal in the language of the proceedings, that is to say English, or on the version of that paragraph in the working language of the General Court, that is to say French, as well as on all the other language versions of the judgment under appeal.

106.

The starting point is that the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent Court, in addition to carrying out a mere review of lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. ( 56 )

107.

Although the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, ( 57 ) in order to satisfy the requirements of conducting a review exercising its powers of unlimited jurisdiction for the purpose of Article 47 of the Charter with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement. ( 58 )

108.

If one relies on the French language version of the judgment under appeal or all the language versions of that judgment other than the English version, the reasoning of the General Court in paragraph 156 of the judgment under appeal is, contrary to the appellants’ assertion, consistent with the requirements set out in that case-law.

109.

It is thus true that in paragraph 156 of the judgment under appeal the General Court rejected the argument that the Commission should have taken account of the infringement’s alleged lack of effects on the market with reference to point 22 of the 2006 Guidelines and found in that regard that, according to the wording of that provision of the Guidelines, the Commission is not required to take account of the actual impact on the market, or the absence thereof, as an aggravating or mitigating factor.

110.

However, in the French language version and in all the language versions of the judgment under appeal other than the English language version, the General Court further stated that it is sufficient that the level of the proportion of the value of sales to be taken into consideration established by the Commission is, ‘as in the present case’, justified by other factors capable of influencing the determination of gravity pursuant to that provision, such as the nature of the infringement, the combined market share of all the parties concerned and the geographic scope of the infringement.

111.

It is clear from those considerations that the General Court did not, as Nexans claims, reject the argument relating to the alleged lack of effects on the market only by making the general reference to the 2006 Guidelines. Rather, the words ‘as in the present case’ show that the General Court considered, based on its analysis, that in the case at hand the level of the proportion of the value of sales which was taken into consideration by the Commission for the basic amount of the fine was, irrespective of any possible lack of effect on the market, justified by other factors mentioned in the 2006 Guidelines, such as the nature of the infringement. As French is the working language of the General Court, it has to be assumed that the General Court deliberately inserted the wording ‘as in the present case’ (‘comme en l’occurrence’), that is present in the French language version, and that that wording thus reflects the assessment of the present case by the General Court.

112.

It cannot therefore be complained that the General Court did not adequately examine the argument made by Nexans at first instance or adequately exercise its unlimited jurisdiction in respect of the Commission’s decision to impose a fine. The judgment under appeal is, however, vitiated by an error of law due to the failure to insert ‘as in the present case’ in the English language version of paragraph 156 of that judgment, which in principle must cause it to be set aside. Indeed, without that insertion it cannot be acknowledged that the General Court has sufficiently exercised its power of unlimited jurisdiction in respect of the fine. Accordingly, the case should be referred back to the General Court for reconsideration. However, as the absence of the relevant insertion uniquely occurs in the English version of the judgment under appeal and is obviously due to a translation error, the General Court could remove that error in law before the decision of the Court of Justice by means of a rectification in accordance with Article 164 of its Rules of Procedure. In any event, that would be preferable to setting aside the judgment under appeal and referring the case back to the General Court, as the latter would only unnecessarily extend the proceedings and engender additional costs while the outcome would not change since, following the referral back to it, the General Court would once more dismiss the claim — correctly translated this time — on the same grounds. In order not to impair the judicial protection available to Nexans, on the rectification of the English version of the judgment under appeal, a new time limit for lodging an appeal against the rectified part of that judgment should start to run. Alternatively, the Court of Justice could grant the parties in the present proceedings a period to amend their argument. ( 59 )

113.

If the General Court were promptly to rectify the judgment under appeal and if the Court of Justice thus were to rely on the fact that the General Court exercised its jurisdiction, it would appear that the latter’s assessment regarding the gravity of the infringement is also all the more justified since, according to the Court’s case-law, a rate of 15% is justified in the case of a market-sharing agreement solely on the basis of the gravity of the infringement, as market-sharing is among the most harmful restrictions of competition as referred to in point 23 of the 2006 Guidelines and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines. ( 60 ) Accordingly, the Court held, though only after the judgment under appeal was delivered, in its judgment of 26 September 2018 in Philips and Philips France v Commission, that the complaint that the General Court failed to examine an argument relating to the gravity of the infringement is ineffective where the gravity multiplier chosen by the Commission is justified in view of the nature of the infringement. ( 61 )

114.

Lastly, the above considerations are also not called into question by the judgment of the Court of Justice in Infineon Technologies v Commission, which is forcefully cited by the appellants. ( 62 )

115.

It is true that the Court of Justice found in that judgment that the General Court was not entitled, without misconstruing the extent of its unlimited jurisdiction, to refrain from responding to the argument raised by Infineon according to which the Commission had infringed the principle of proportionality by setting the amount of the fine without taking into account the limited number of anti-competitive contacts in which Infineon participated. ( 63 )

116.

A specific feature of the Infineon case was, however, that, unlike in the Philips case ( 64 ) cited in point 113 of the present Opinion and the present case, it was necessary to consider the extent of Infineon’s individual participation in the infringement concerned, in particular to take account of the existence of mitigating circumstances to justify the reduction of the fine. ( 65 ) Accordingly, as the Court has expressly stated, the findings in Philips and Philips France v Commission, as reproduced in point 113 of the present Opinion, are not called into question by the judgment in Infineon Technologies v Commission. ( 66 )

117.

It thus follows from the above considerations that — subject to the General Court promptly rectifying the English version of the judgment under appeal — the fourth ground of appeal must also be rejected.

118.

The fifth ground of appeal raised by Nexans relates, lastly, to the assessment of the ‘European cartel configuration’ for the setting of the fine. As has already been mentioned, the Commission increased the basic amount of the fine in respect of the European undertakings by 2% because, in addition to market-sharing among the European, Japanese and South Korean undertakings (‘A/R cartel configuration’), there was additional market-sharing among the European undertakings. ( 67 )

119.

In the proceedings before the General Court, Nexans disputed that additional harm had been caused by the European cartel configuration which could justify that increase. That assertion was rejected by the General Court.

120.

In the present appeal proceedings, Nexans now objects to the finding made by the General Court in that regard in paragraph 182 of the judgment under appeal. That paragraph states that, contrary to Nexans’ assertion, there is no doubt that sharing high voltage submarine and underground power cable projects within the ‘European cartel configuration’ increased the harm to competition caused in the EEA by the ‘A/R configuration’ of the cartel.

121.

According to Nexans, that finding is vitiated by a manifest error of assessment and a failure to state reasons. In its view, both the Commission and the General Court recognised that Nexans produced proof that the infringement did not affect all European sales. Against that background, it is not a sufficient justification for increasing the fine that there is no doubt that the European cartel configuration caused additional harm to competition. Because the General Court confirmed the lawfulness of that increase, the appellants claim that it thus made an error of assessment.

122.

That argument is not convincing. It is also based in part on a manifestly erroneous reading of the judgment under appeal.

123.

First of all, the General Court certainly did not consider that the appellants had proved that the infringement had no effect on all European sales. Rather, the General Court found in paragraph 181 of the judgment under appeal that the ‘European cartel configuration’ implied a further commitment which went beyond the existing allocation rules in the ‘A/R cartel configuration’.

124.

Accordingly, as has already been mentioned, the General Court concluded in paragraph 182 of the judgment under appeal that there is no doubt that the harm to competition caused by the ‘A/R cartel configuration’ was further increased by that ‘European cartel configuration’. In the appeal proceedings, Nexans does not call into question those findings made by the General Court, nor is there any indication that those findings are based on a distortion of evidence presented by Nexans at first instance.

125.

Against that background, it is not clear, first, how the General Court’s finding in paragraph 182 of the judgment under appeal might be vitiated by a failure to state reasons.

126.

Second, the General Court also correctly held on the substance that sharing the European undertakings’ projects among themselves caused additional harm to that caused by the market-sharing among the European, Japanese and South Korean undertakings. The close connection between the two configurations does not alter the fact that the ‘European cartel configuration’ represented a commitment not inherent in the ‘A/R cartel configuration’ which had autonomous importance. That intra-European allocation would also have had to be categorised as anti-competitive irrespective of the market-sharing among the European, Japanese and South Korean undertakings. There is therefore no error of assessment in the General Court’s finding that an increased fine could legitimately be imposed in respect of that further degree of infringement.

127.

The fifth ground of appeal must therefore also be rejected.

128.

As none of the grounds of appeal put forward by Nexans can be successful, the appeal must be dismissed in its entirety.

129.

Under Article 184(2) of its Rules of Procedure, the Court is to make a decision as to costs where it dismisses an appeal.

130.

It follows from Article 138(1) and (2) in conjunction with Article 184(1) of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings; where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared. Since the Commission has applied for costs and the appellants have been unsuccessful in their pleas, the latter must be ordered to pay the costs. Having brought the appeal together, they must bear the costs jointly and severally. However, it would be inappropriate to order the appellants to pay the costs arising in connection with the fourth ground of appeal, since that ground of appeal stems from a translation error of the Court of Justice of the European Union. To that extent, all parties should initially bear their own costs. Subsequently, they may review whether to claim compensation in that respect from the Court of Justice of the European Union.

131.

On the basis of the above considerations, I propose that the Court should: