1.

By their appeal, Les Mousquetaires SAS (‘LM’) and ITM Entreprises SAS (‘ITM’ or ‘Intermarché’ and, together with LM, ‘the appellants’) seek to have set aside in part the judgment of the General Court of 5 October 2020, Les Mousquetaires and ITM Entreprises v Commission (T‑255/17, EU:T:2020:460; ‘the judgment under appeal’), by which that court dismissed in part their application based on Article 263 TFEU for the annulment, (i) primarily, of two decisions adopted by the European Commission on 21 February 2017 ( 2 ) ordering LM and all companies directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(1) and (4) of Regulation (EC) No 1/2003 ( 3 ) and, in the alternative, of two decisions adopted by the Commission on 9 February 2017 ordering ITM and all companies directly or indirectly controlled by it to submit to an inspection pursuant to Article 20(1) and (4) of Regulation No 1/2003, ( 4 ) and (ii) of the decision by which the Commission, first, seized and copied the data held on communication and storage devices containing data relating to the private life of users of those devices and, second, rejected the request submitted by the appellants for those data to be returned.

2.

The background to the dispute, which is set out in paragraphs 2 to 11 of the judgment under appeal, can be summarised as follows for the purposes of these proceedings.

3.

LM is the holding company of the Les Mousquetaires group, which is active in the food and non-food distribution sector in France and Belgium. ITM is its subsidiary.

4.

Having received information about exchanges of information between ITM and, in particular, Casino, which is also active in the food and non-food distribution sector, the European Commission adopted the Tute 1 decision of 9 February 2017.

5.

The operative part of that decision reads as follows:

‘Article 1

… Intermarché … and all companies directly or indirectly controlled by it, are required to submit to an inspection in relation to their possible participation in concerted practices contrary to Article 101 [TFEU] in the markets for the supply of fast-moving consumer goods, in the market for the sale of services to manufacturers of branded goods and in the markets for consumer sales of fast-moving consumer goods. Those concerted practices consist in:

The inspection may take place in any of the undertaking’s premises …

Intermarché shall grant the officials and other persons authorised by the Commission to conduct an inspection and the officials and other persons authorised by the Competition Authority of the Member State concerned to assist them or appointed by that Member State for that purpose access to all of its premises and means of transport during normal office hours. It shall make available for inspection the books and any other business document, irrespective of the medium on which they are stored, if the officials and other authorised persons so request and shall allow them to examine those books and documents in situ and to take or obtain copies or extracts from those books or documents in any form whatsoever. It shall permit seals to be placed on all the business premises or books or documents throughout the inspection period in so far as that is necessary for the purposes of the inspection. It shall give oral explanations immediately and in situ on the subject matter and the aim of the inspection if those officials or persons so request and shall authorise any representative or member of the staff to provide such explanations. It shall permit those explanations to be recorded in any form whatsoever.

Article 2

The inspection may commence on 20 February 2017 or shortly thereafter.

Article 3

Intermarché … and all companies directly or indirectly controlled by it are the addressees of the present decision.

This decision shall be notified, just before the inspection, to the undertaking to which it is addressed, pursuant to Article 297(2) [TFEU].’

6.

Having also received information about exchanges of information between, in particular, Intermarché and other undertakings or associations of undertakings, the Commission adopted the Tute 2 decision of 9 February 2017. Article 1 of that decision referred to Intermarché’s possible participation in concerted practices consisting in ‘exchanges of information, since 2015, between undertakings and/or associations of undertakings, in particular AgeCore and/or its members, Coopernic and/or its members and Eurelec and/or its members, concerning discounts obtained by them in the markets for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors and prices in the market for the sale of services to manufacturers of branded products in the food products, hygiene products and maintenance products sectors, in several Member States of the European Union, notably in France and Germany’. The provisions of Articles 2 and 3 of the decision were identical to those of Articles 2 and 3 of the Tute 1 decision of 9 February 2017.

7.

Having been informed of that inspection by the Commission, the French Competition Authority applied to the judge of liberty and detention of the tribunal de grande instance d’Évry (Regional Court, Évry, France) for authorisation to carry out the visit and seizure operations at the appellants’ premises. By order of 17 February 2017, the judge of liberty and detention authorised the visits and seizures requested as a precautionary measure. As none of the measures taken during the inspection required the use of ‘enforcement authorities’ for the purposes of Article 20(6) to (8) of Regulation No 1/2003, that order was notified to the appellants.

8.

The inspection commenced on 20 February 2017, when the Commission’s inspectors, accompanied by representatives of the French Competition Authority, attended Intermarché’s premises.

9.

Following doubts concerning the status as an ITM or LM employee of one of the persons concerned by the inspection, the Commission adopted the Tute 1 and Tute 2 decisions of 21 February 2017, on the basis of the same grounds as those stated in the Tute 1 and Tute 2 decisions of 9 February 2017; only the designation of the main addressee of the inspection (ITM rather than LM) was changed. ( 5 )

10.

In the course of the inspection, the Commission, inter alia, visited offices, collected material, in particular computer equipment (portable computers, mobile phones, tablets, storage devices), interviewed several individuals and copied the contents of the material collected.

11.

The appellants sent the Commission several letters dated 24 February 2017, in which they set out reservations as to the inspection decisions and the conduct of the inspection carried out on the basis thereof, contesting in particular the copying of documents relating to the private life of members of their staff. Those reservations were supplemented by a letter sent to the Commission on 13 April 2017 requesting, inter alia, the return of some of the documents copied.

12.

By application lodged at the Registry of the General Court on 28 April 2017, the appellants challenged the Tute 1 and Tute 2 decisions of 21 February 2017 and, as far as necessary, the Tute 1 and Tute 2 decisions of 9 February 2017. In support of their action, they relied, in essence, on five pleas in law. The first was based on a plea of illegality in respect of Article 20(4) of Regulation No 1/2003 and contested the insufficiency of the remedies available against the conditions in which the inspections were conducted; the second alleged the failure to notify the decisions at issue properly; the third infringement of their right to defend themselves against the inspection; the fourth infringement of the obligation to state reasons; and the fifth alleged infringement of the right to the inviolability of the home.

13.

By decision of 22 September 2017 of the President of the Ninth Chamber of the General Court, the Council of the European Union was granted leave to intervene in the proceedings before the General Court in support of the Commission.

14.

In the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure of the General Court, that court asked the Commission to produce a non-confidential version of the indicia of presumed infringements which it had in its possession on the date of the decisions at issue and asked the appellants to express their views on the indicia produced. In response to that request, the Commission inter alia produced minutes of interviews held in 2016 and 2017 with 13 suppliers of the fast-moving consumer goods concerned by the inspection who regularly entered into agreements with Casino and ITM (‘the minutes of interviews’).

15.

By the judgment under appeal, the General Court, first, after finding that the Commission did not have sufficiently serious indicia to suspect the existence of an infringement consisting in exchanges of information between Casino and ITM relating to their future business strategies, annulled Article 1(b) of the Tute 1 decision of 9 February 2017 and Article 1(b) of the Tute 1 decision of 21 February 2017. ( 6 ) Second, finding that the remedies available to challenge both the legality and the conduct of the inspections were effective and that the Commission had set out adequate grounds in law and could legitimately have ordered inspections vis-à-vis the appellants’ possible participation in the concerted practices listed in Article 1(a) of the Tute 2 decisions of 9 and 21 February 2017, the General Court dismissed the remainder of the action. ( 7 )

16.

By their appeal, the appellants claim that the Court should annul paragraph 2 of the operative part of the judgment under appeal, grant the forms of order sought by them at first instance by annulling the Tute 1 decisions of 9 and 21 February 2017 (jointly, ‘the decisions at issue’) and order the Commission to pay all the costs of the entire proceedings, including the proceedings before the General Court.

17.

The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.

18.

The Council contends that the Court should dismiss the first ground of appeal and order the appellants to pay the costs.

19.

The appellants raise five grounds in support of their appeal. The first ground of appeal alleges errors of law and a failure to state reasons by the General Court in its analysis of the effectiveness of the legal remedies concerning the conduct of the inspections. The second ground of appeal alleges infringement of Articles 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), Article 296 TFEU and Article 20(4) of Regulation No 1/2003 in that the General Court disregarded the obligation to state reasons and to limit inspection decisions. The third ground of appeal alleges an error of law and infringement of Regulation No 1/2003 in that the General Court classified a procedural phase ‘before the adoption of any measure alleging that an infringement has been committed’ as not subject to that regulation. The fourth ground of appeal alleges infringement of Articles 6 and 8 ECHR and Article 19 of Regulation No 1/2003 in that the General Court characterised as ‘sufficiently serious indicia’ information affected by formal and substantive irregularities. Finally, the fifth ground of appeal alleges a failure to state reasons resulting from the absence of any review of the probative value of those indicia and from an error vis-à-vis the characterisation as ‘indicia’.

20.

By their first ground of appeal, the appellants contest, in essence, paragraphs 83 to 112 of the judgment under appeal in which the General Court examined and rejected their plea of illegality in respect of Article 20(4) of Regulation No 1/2003. In the context of that plea of illegality, the appellants contested the absence in Article 20 of Regulation No 1/2003 of provisions conferring on measures relating to the conduct of an inspection the nature of acts amenable to appeal under the Treaty, and requiring a reference to that possible remedy in the inspection decision, in the same way that, under Article 20(4) of Regulation No 1/2003, the right to have the inspection decision itself reviewed by the Courts of the European Union must be indicated in that decision. ( 8 )

21.

Having rejected, in paragraphs 58 to 75 of the judgment under appeal, the pleas of inadmissibility raised by the Commission and the Council against the plea of illegality raised by the appellants, the General Court began to examine the merits of the appellants’ plea. In paragraph 82 of the judgment under appeal, it recalled first of all the judgments given by the European Court of Human Rights (‘the ECtHR’) in respect of Articles 6 and 13 ECHR in relation to home visits and set out the four conditions established in those judgments that must be met for the existence of an effective remedy to be accepted, namely the ‘effectiveness condition’, the ‘efficiency condition’, the ‘certainty condition’ and the ‘“reasonable time” condition’. In paragraph 83 of the judgment under appeal, the General Court explained that the finding contained in the judgments that the conduct of an inspection operation must be amenable to effective judicial review in the particular circumstances of the case in question entails taking into account all the legal remedies available to an undertaking which is the subject of an inspection and thus a global analysis of those legal remedies. Before conducting such an analysis, the General Court pointed out that it ‘is immaterial that, taken individually, each of the legal remedies examined does not satisfy the four conditions required by the case-law of the ECtHR’. ( 9 )

22.

Next, the General Court identified six legal remedies that allow challenges relating to an inspection operation to be brought before a court: an action against the inspection decision; an action against a Commission decision penalising an obstruction of the inspection on the basis of Article 23(1)(c) to (e) of Regulation No 1/2003; an action against ‘any act meeting the conditions of a challengeable act established in the case-law that is adopted by the Commission following the inspection decision and in the course of the inspection operations, such as a decision rejecting a request for protection of documents on the basis of the confidentiality of communications between lawyers and clients’, based on the judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission ( 10 ) (‘the judgment in Akzo’); an action against the final decision closing the procedure initiated under Article 101 TFEU; an application for interim relief; and, lastly, an action to establish non-contractual liability.

23.

In paragraphs 90 to 98 of the judgment under appeal, the General Court analysed to what extent each of those legal remedies allowed the way in which an inspection was conducted to be challenged and redress against any irregularities committed by the Commission in the course of that inspection to be provided.

24.

After that analysis, in paragraphs 99 to 110 of the judgment under appeal, the General Court set out the reasons why it considered that the system for review of the conduct of inspection operations formed by all such legal remedies satisfied the four conditions set out in point 21 of this Opinion. In that context, it inter alia pointed out, in paragraph 101 of that judgment, as regards the effectiveness condition, that although each of those legal remedies, taken individually, did not make it possible to undertake a review of the merits of all the measures taken at the time of the inspection, their combined exercise permitted such a review.

25.

In paragraph 111 of the judgment under appeal, the General Court therefore concluded that the plea of illegality in respect of Article 20 of Regulation No 1/2003, alleging breach of the right to an effective remedy, had to be rejected as unfounded.

26.

After pointing out that Article 20(4) of Regulation No 1/2003 confers broad investigative powers on the Commission which seriously impinge on the rights of undertakings and individuals enshrined in Article 8 ECHR and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the appellants observe that, in its judgment of 2 October 2014, Delta Pekárny v. the Czech Republic ( 11 ) (‘the judgment in Delta Pekárny’), the ECtHR held that, for such interference to be compatible with the ECHR, there must, inter alia, be an effective remedy that makes it possible to contest, in law and in fact, not only the legality of the authorisation, but also the conditions in which an inspection to which the undertaking is obliged to submit is conducted.

27.

The appellants claim, in the first place, that, contrary to the findings of the General Court, in particular in paragraphs 83 and 87 of the judgment under appeal, it does not follows from the judgments of the ECtHR that the effectiveness of the legal remedies to challenge the legality and the conduct of an inspection must be assessed on the basis of a ‘global analysis’ of the potential legal remedies, let alone on the basis of a compensatory analysis. By examining the possible actions to contest the legality and the conduct of the inspections jointly and by claiming to offset the disadvantages of one remedy against the advantages of another, the General Court came to an erroneous conclusion in paragraphs 83 and 99 to 111 of the judgment under appeal.

28.

In the appellants’ view, a separate examination, taking into account the particular circumstances of the case in question, would have led the General Court to dismiss from the outset three of the legal remedies which it deemed to be effective: namely, an action against the substantive decision, which is uncertain, cannot be conducted within a reasonable period of time and does not allow for the provision of adequate redress; an action to contest the legality of the inspection decision, which cannot address the conditions in which the inspection was conducted, as shown by the General Court’s rejection of the pleas in law raised in that regard by the appellants as inadmissible or inoperative; and an action to establish non-contractual liability, since the sole purpose of such an action is the award of compensation.

29.

All the other legal remedies, that is, an action concerning the requests for protection of the confidentiality of exchanges between lawyer and client, the action for interim relief mentioned in the General Court’s judgment in relation to the protection of private information and an action against an obstruction decision, are only partial remedies and do not allow for verification, in fact and in law, that all the conditions in which an inspection was conducted complied with Article 8 ECHR. The accumulation of partial remedies which do not support a finding, in concreto, that a remedy exists that satisfies the effectiveness, efficiency, certainty and reasonable time conditions in respect of all the issues that may arise in connection with the conduct of the inspection does not satisfy the requirements of Article 8 ECHR any more than a lack of a remedy.

30.

In the second place, the appellants submit that, as far as concerns the legal remedies listed in the preceding point of this Opinion, the General Court placed the burden of creating the conditions for those remedies to be pursued on the undertaking concerned. Thus, both the action for interim relief and the ex post action relating to data protection, as well as the action based on the case-law established in the judgment in Akzo on the protection of lawyer-client correspondence, assumes that the undertaking, turning its focus away from the inspection taking place, succeeds in triggering an explicit or implicit refusal from the Commission. Those remedies are also based on the Commission’s agreement to place the information in a sealed envelope pending the General Court’s decision. As for an obstruction action, it presupposes that the undertaking is obstructive to the point of having a penalty imposed on it.

31.

The Commission and the Council contest all those arguments.

32.

Before considering in turn the two complaints that make up the first ground of appeal, it should be observed that, in the heading of their first ground of appeal, the appellants also refer to a failure to state reasons that vitiates the General Court’s analysis of the effectiveness of the legal remedies concerning the conduct of the inspections. However, they expand upon that complaint only in their reply, referring merely, in essence, to the arguments set out in points 27 to 29 of this Opinion.

33.

Without it being necessary to address the question of the admissibility of that complaint, which is contested by the Council, or whether that complaint can be raised ex officio, ( 12 ) it is sufficient to observe that the grounds on which the General Court took the view that the appellants’ arguments calling on it to find there to be no effective remedy as regards the conditions in which the inspections were conducted had to be rejected are clearly and unequivocally set out in paragraphs 78 to 112 of the judgment under appeal, and therefore, in that respect, that judgment undoubtedly satisfies, in my view, the requirements to state reasons as clarified by the Court. ( 13 )

34.

By the first complaint of their first ground of appeal, the appellants essentially contest the General Court’s approach of analysing all the legal remedies available to the undertakings to contest the legality of the inspection operations conducted in order to ascertain whether, taken as a whole, they satisfy the requirements of Article 47 of the Charter.

35.

In the first place, in the appellants’ view, that approach is at odds with the case-law of the ECtHR.

36.

In that regard, I would observe, as a preliminary point, that Article 52(3) of the Charter provides that, in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and the scope of those rights shall be the same as those laid down by the ECHR. The explanations relating to the Charter ( 14 ) make clear, in relation to that article, that the meaning and the scope of the rights guaranteed by the ECHR are determined not only by the text of the ECHR and the Protocols to it, but also by the case-law of the ECtHR. Moreover, it is apparent from those explanations that Article 47 of the Charter corresponds to Article 6(1) and Article 13 ECHR.

37.

Article 6(1) ECHR enshrines, inter alia, the right of access to a court. That right of access must be ‘practical and effective’, ( 15 ) that is to say, every individual must have ‘a clear, practical opportunity to challenge an act that is an interference with his rights’ ( 16 ) or a clear, practical opportunity to claim compensation. ( 17 ) In turn, Article 13 ECHR ( 18 ) requires the States Parties to that convention to provide for an effective remedy, by which individuals can prevent the occurrence or the continuation of an alleged violation of their rights guaranteed by the ECHR or obtain appropriate redress for any violation that has already occurred. ( 19 )

38.

As regards the relationship between those two provisions, the ECtHR has explained that, where it applies, Article 6(1) ECHR ‘constitutes lex specialis in relation to Article 13’ and ‘its requirements, which imply the full panoply of safeguards inherent in judicial procedures, are stricter than, and absorb, those of Article 13’. ( 20 )

39.

In relation to home visits conducted by competition authorities, the question of the existence of an effective remedy has been examined by the Court from the perspective of Article 6(1) and of Article 8 ECHR. Where the application had also been based on Article 13 ECHR, that court either declared that only Article 6(1) ECHR was applicable ( 21 ) or did not examine the complaint, considering such examination to be superfluous. ( 22 )

40.

That said, I note that the approach adopted by the General Court inter alia in paragraphs 83 and 87 of the judgment under appeal, which involved conducting a global analysis of the legal remedies at the disposal of the undertakings concerned by Commission inspections under Article 20 of Regulation No 1/2003 to contest the lawfulness of the operations carried out during those inspections, does indeed mention the case-law of the ECtHR concerning Article 13 ECHR. The ECtHR has made clear that the protection afforded by that article does not go so far as to require any particular form of remedy ( 23 ) and that, ‘even if a single remedy does not by itself entirely satisfy the requirements of Article 13 [ECHR], the aggregate of remedies provided for under domestic law may do so’. ( 24 )

41.

Such an approach, although not expressly endorsed by the ECtHR in the context of Article 6(1) or Article 8 ECHR, does not appear, contrary to the appellants’ claims, to be incompatible with the case-law in relation to home visits to which they refer.

42.

In that regard, it should be recalled, first of all, that, with effect from the judgment of 21 February 2008, Ravon and Others v. France (‘the judgment in Ravon’), ( 25 ) the ECtHR has held that the undertakings concerned by home visits must be able to obtain a judicial review, in fact and in law, of the lawfulness of the decision ordering the visit and, as the case may be, of the measures adopted on the basis of that decision. ( 26 )

43.

As the Commission rightly argues, in that judgment, as in the others mentioned by the appellants, the ECtHR – after observing that the lack of a review a priori of the inspection measure can be counteracted by a judicial review ex post facto of that measure and of its conduct, which is effective in fact and in law – clarified that, ‘where an operation deemed unlawful has already taken place, the remedy or remedies available must make it possible for the person concerned to obtain adequate redress’, ( 27 ) thus rejecting the notion that a single remedy is a necessary condition for the effectiveness of the judicial protection against such measures.

44.

In addition, in that same judgment, adopting a case-by-case approach and without stopping at the clear lack, within the national legal system being examined, of an independent remedy against the contested measure that satisfies the requirements laid down in Article 6(1) ECHR or Article 8 ECHR, the ECtHR examined whether the various legal remedies available to the persons concerned afforded them, in view of the complaints put forward by them, an effective remedy and adequate redress. ( 28 )

45.

The arguments raised by the appellants cannot, in my view, call into question the conclusion that I reached in point 41 of this Opinion.

46.

First, whilst the appellants have rightly observed that it follows from the judgment in Canal Plus, that the effectiveness condition is to be assessed in relation to each of the two types of review required by the judgment in Ravon and mentioned in point 42 of this Opinion, and that the absence of one of them cannot be compensated for by the guarantee of the other, ( 29 ) the General Court did not, however, take the view in the judgment under appeal, contrary to what the appellants appear to imply, that the existence of one legal remedy against the inspection decision was in itself capable of compensating for the alleged lack of judicial review of the conduct of the inspection operations.

47.

It is clear from paragraphs 90 to 98 of the judgment under appeal that the General Court examined to what extent the various legal remedies available to the appellants, including an action against the inspection decision, made it possible to bring before a court complaints relating to the lawfulness of the conduct of those operations, and therefore to what extent, despite the absence of one single remedy, the system nevertheless provided the opportunity for an effective judicial review of those operations, satisfying the requirements laid down in the case-law of the ECtHR. In that regard, the approach adopted by the General Court in the judgment under appeal differs markedly from the defensive position adopted by the French Government and rejected by the ECtHR in the judgment in Canal Plus. ( 30 )

48.

Second, as for paragraph 87 of the judgment in Delta Pekárny, to which the appellants also refer, it cannot be inferred from the finding contained in that paragraph, namely that the efficiency of a judicial review – whether the review a posteriori of the legality and the necessity of a search measure, such as in the dispute that gave rise to that judgment, or the review of the implementing measures for such a search – must be assessed ‘in the particular circumstances of the case in question’, that that assessment cannot be carried out by having regard to all the legal remedies available to the undertakings concerned.

49.

The purpose of such a finding is merely to clarify that the effectiveness of a remedy must be assessed in concreto, ( 31 ) as the ECtHR has repeatedly held that its task is not to review the relevant national law or practice in the abstract but rather to confine itself to examining the issues raised by the specific case before it ( 32 ) and, in particular, to considering only those remedies which could have some relevance for the applicant. ( 33 ) Accordingly, paragraph 87 of the judgment in Delta Pekárny in fact argues in favour of an approach similar to that adopted by the General Court, which seeks to consider all the legal remedies available, as moreover the General Court itself observed in paragraph 83 of the judgment under appeal. As I have already noted in point 44 of this Opinion, such an approach was, in fact, adopted by the ECtHR in all the cases to which the appellants refer. ( 34 )

50.

Third, contrary to the appellants’ claims, the General Court conducted a separate examination of the six legal remedies that it identified, indicating both the complaints relating to the lawfulness of the inspection operations that may be raised by the undertakings concerned and the redress against any irregularities vitiating those operations that they can seek to obtain by exercising each of those legal remedies.

51.

It is true that the General Court’s examination concludes with an overall assessment of the system for review of the conduct of inspection operations formed by all the legal remedies considered, which does not necessarily achieve the same level of specificity as can be found in the judgments of the ECtHR. However, it should be observed that, in the judgment under appeal, the General Court was called upon to rule on a plea of illegality of Article 20 of Regulation No 1/2003, raised on the basis of Article 277 TFEU, which requires a general assessment of that system that goes beyond the ‘particular circumstances of the case in question’.

52.

In the context of the first complaint of their first ground of appeal, the appellants claim, in the second place, that, in order to comply with the case-law of the ECtHR, the General Court should have excluded from its analysis from the outset the three legal remedies consisting of an action against the substantive decision ruling on the existence of an infringement of the rules of competition, an action against the inspection decision and an action to establish non-contractual liability.

53.

In that regard, it should be observed as a preliminary point that, in the light of the approach adopted by the General Court – which I consider to be consistent with the case-law of the ECtHR –, none of the legal remedies available to the undertakings subject to an inspection measure had logically to be ruled out, provided that the remedy allows those undertakings to bring before the Courts of the European Union one or more complaints relating to the unlawful conduct of the inspection operations. That said, I shall make the following observations on the three legal remedies which the appellants argue are irrelevant.

54.

As for, first, an action against the substantive decision ruling on the existence of an infringement of the rules of competition, it is indeed true, as the appellants point out, that, in the judgment in Canal Plus, the ECtHR found, first, that the accessibility of that legal remedy is uncertain, given the pre-requisites both of a substantive decision and an action brought against it, and, second, that it does not provide adequate redress in view of the uncertainty of a judicial review being conducted within a reasonable time. ( 35 )

55.

Nevertheless, those findings are not sufficient in my view to conclude that the General Court should have excluded such a legal remedy from its analysis.

56.

It should be pointed out first of all that, in the case that led to the judgment in Canal Plus, the ECtHR examined to what extent an action against the substantive decision adopted by the national competition authority could constitute an effective review ex post facto of the legality of the inspection decision and not, as in the case at issue here, of the lawfulness of one or more measures adopted in implementation of that decision. The availability of an immediate legal remedy against the inspection decision, coupled with the possibility of applying for its suspension, is of crucial importance in order to prevent the consequences of unlawful interference with the right to the inviolability of the home enshrined in Article 8 ECHR or, as the case may be, to prevent the interference itself.

57.

Next, it must be observed that the ECtHR, in the more protected context of searches of the private residence of natural persons, ( 36 ) has acknowledged that, in certain circumstances, the review of a measure violating Article 8 ECHR conducted ex post facto by the criminal courts, and therefore in conditions of uncertainty and non-immediacy comparable to those that characterise an investigation into the infringement of competition law, provides adequate redress for the person concerned, where the court conducts an effective review of the legality and the necessity of the contested measure and, where appropriate, excludes the evidence obtained from the criminal trial. ( 37 )

58.

That being said, I note, in any case, that, in the context of the overall analysis conducted by the General Court, the legal remedy formed by an action against the final decision – in the context of which, as is rightly stated in paragraph 90 of the judgment under appeal, the undertakings concerned can obtain a review of the Commission’s compliance with all the limits imposed on it when conducting an inspection – does allow inter alia those undertakings to avoid the harm that they would suffer by virtue of a violation of their fundamental right to the inviolability of the home if the Commission were allowed to use against them evidence unlawfully obtained in the course of an inspection.

59.

Such harm is likely to materialise only if and when a final decision finding there to be an infringement is adopted. Furthermore, since that harm is precluded where the evidence gathered unlawfully is excluded from the proceedings, the fact that complaints against the conduct of the inspection operations that may be raised in the context of an action against the final decision cannot entail, if upheld, the annulment of that decision, and the fact that that action does not allow for the return of the evidence unlawfully obtained, as alleged by the appellants, are irrelevant.

60.

With regard, second, to an action against the inspection decision, I note that the General Court takes account of that legal remedy only in so far as it allows, in the event of a finding of illegality, all the measures adopted in implementation of that decision to be invalidated. Whilst it is true that it is not possible, in the context of such an action, to put forward complaints directed specifically against the inspection operations conducted, the fact remains that it does allow for the indirect verification of the legality of those operations by means of a review of the legality of the act upon the basis of which they are adopted. It follows that the General Court did not err in also taking into account, as part of its overall analysis of the legal remedies available to the undertakings to challenge the lawfulness of the conduct of the inspection operations, an action against the inspection decision itself.

61.

As regards, third, an action to establish non-contractual liability, the appellants refer, in support of their arguments against the account taken of that legal remedy, to paragraph 33 of the judgment in Ravon, in which the ECtHR held that an action ‘that allows compensation to be obtained in the event of damage occasioned by a home visit rather than a review of the lawfulness of the decision prescribing that visit and of the measures adopted on the basis of that decision’ cannot constitute an ‘effective judicial review’, as required by its case-law. In that regard, it is sufficient to note that, whilst that paragraph does in fact state that, in relation to home visits, an action with a purely compensatory purpose cannot, on its own, satisfy the conditions laid down in Article 6(1) ECHR ( 38 ) or in Article 8 of that convention, this does not mean however that such an action cannot number amongst the remedies available to the undertakings concerned and offer them adequate redress, in particular in the situation in which an inspection operation deemed unlawful has already taken place. It follows that the General Court did not err in law by also taking into account, in its overall analysis, the possibility – available to undertakings that consider that illegalities committed by the Commission in the course of an inspection caused them harm capable of triggering the liability of the European Union – of bringing an action to establish non-contractual liability against the European Union.

62.

In the context of their first complaint, the appellants claim, in the third place, that all the other legal remedies mentioned by the General Court are merely ‘partial’ and do not allow for a verification, in fact or in law, that all the conditions in which the inspection was conducted complied with Article 8 ECHR. The appellants point in particular to the lack of an action compatible with the ECHR that allows the unreasonable duration of an inspection to be contested.

63.

In that regard, it is sufficient to state that, according to the case-law of the ECtHR reproduced above, in order to satisfy the requirements of Article 6(1) ECHR, the undertakings concerned by a home visit must have the possibility of obtaining an examination of the substance of their challenges and of being granted adequate redress. However, there is no requirement that all the complaints that may be raised against the measures taken by the public authority on the basis of the decision prescribing the visit, measures which allegedly violate the right guaranteed by that article, are so examined as part of one and the same legal remedy.

64.

As for the alleged lack of an effective and certain remedy allowing a complaint based on the unreasonable duration of an inspection to put forward and adequate redress obtained, I note that such a complaint can be raised both in the context of an action against the final decision and as part of an action to establish non-contractual liability. In the first case, if upheld, that complaint can result in the evidence seized by the Commission being rendered unusable after a period of time deemed to be reasonable has passed; ( 39 ) in the second case, it can entail the award of compensation. In the latter regard, I note that, in the case of a complaint based on infringement of the right to a hearing within a reasonable time, within the meaning of Article 6(1) ECHR, it follows from the case-law of the ECtHR that, in principle, a choice is available between a ‘preventative’ remedy or a remedy that ‘expedites’ matters, by which the length of the proceedings can be curtailed to prevent it from becoming excessive, and a ‘compensatory or pecuniary’ remedy, that allows redress to be obtained a posteriori for delays that have already occurred, regardless of whether the proceedings are still pending or have ended. ( 40 )

65.

In connection with the first complaint of their first ground of appeal, by which they seek to contest the overall assessment conducted by the General Court, the appellants submit, in the fourth place, that the two legal remedies mentioned in paragraphs 94 and 96 of the judgment under appeal, that is, suspensory interim relief during the inspection and an ex post action concerning the protection of the private information of the managers and employees of the undertaking subject to inspection are, to date, untested and their availability remains to be demonstrated. In those circumstances, such remedies cannot satisfy the effectiveness condition.

66.

In that regard, whilst the appellants are right in observing that it follows, inter alia, from the judgment in McFarlane v. Ireland, ( 41 ) that a remedy the availability of which remains to be demonstrated and the reality of which is a matter of significant uncertainty cannot be considered ‘effective’, within the meaning of Article 13 ECHR, I would note, however, that the ECtHR did not hesitate in declaring a remedy effective under that provision even before the practice of the domestic courts could be determined, ( 42 ) such that, contrary to what the appellants appear to claim, the absence of established court practice cannot be a decisive factor. ( 43 )

67.

In the present case, it must be observed that the case-law established in the judgment in Akzo, which recognises the admissibility of an action against a Commission decision explicitly or implicitly rejecting a request for the protection of documents on grounds of legal professional privilege protecting communications between lawyers and their clients submitted in the course of an inspection, constitutes merely the application to a specific case of settled case-law, recalled in paragraphs 33 to 35 of the judgment under appeal, under which measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 263 TFEU. ( 44 )

68.

Any act by the Commission occurring within the course of an inspection and satisfying that definition is, in principle, an act open to challenge by an action for annulment under Article 263 TFEU. In that regard, it is my view that, in the same circumstances as those laid down in the judgment in Akzo, a right of action against a decision by which the Commission explicitly or implicitly rejects the opposition raised by the inspected undertaking to the seizure of certain documents should be afforded not only where that opposition is based on the ground that the documents in question are protected by the confidentiality of correspondence between lawyers and their clients, as in the case that gave rise to the judgment in Akzo, or in the case of documents protected on the basis of the private life of the members of staff of that undertaking, ( 45 ) a situation accepted by the General Court in paragraph 37 of the judgment under appeal, but also where it is argued that those documents fall outside the subject matter of the inspection, or that the duration of the inspection has gone beyond a period of time deemed to be reasonable.

69.

The General Court was therefore right to find, in paragraph 94 of the judgment under appeal, that undertakings under inspection enjoy, as a matter of certainty, the option of bringing an action, in the same circumstances as those set out in the judgment in Akzo, against a decision rejecting a request for protection based on the private life of their staff members.

70.

Similarly, I note that, pursuant to Articles 278 and 279 TFEU, in accordance with the summary procedure provided for in Article 39 of the Statute of the Court of Justice of the European Union, as clarified in the relevant provisions of the Rules of Procedure of the Court of Justice and the Rules of Procedure of the General Court, the President of the Court of Justice and the President of the General Court may both order the suspension of the execution of the judgment under appeal, if they consider that circumstances so require, and, in cases before the Court of Justice or the General Court, prescribe any necessary interim measures. Therefore, the General Court did not err in law by taking the view that the possibility, mentioned in paragraph 96 of the judgment under appeal, of obtaining, pursuant to Article 157(2) of the Rules of Procedure of the General Court, an interim measure ordering the suspension of the inspection was indeed genuine.

71.

For all the reasons set out, the first complaint of the first ground of appeal is, in my opinion, unfounded.

72.

By their second complaint, the appellants allege, in essence, that the General Court placed on the undertakings concerned the burden of creating the conditions for the exercise of the various legal remedies listed.

73.

In that regard, it should be recalled that the right of access to a court, enshrined in Article 6(1) ECHR and in Article 47 of the Charter, is not absolute and is subject to limitations permitted by implication, in particular as regards the conditions of admissibility of an action. Those limitations cannot however restrict a litigant’s access in such a way or to such an extent that the very essence of his right to a court is impaired. They must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. ( 46 ) It should also be borne in mind that, in accordance with settled case-law, Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union. ( 47 )

74.

With regard, first of all, to the possibility of challenging an explicit or implicit refusal by the Commission in the course of inspection operations where the right of the inspectors to seize certain documents is contested, I note that the judgment in Akzo simply requires that the inspected undertakings demonstrate their opposition to the acquisition of the documents in question, providing reasons for such opposition. ( 48 ) Since such opposition is the only opportunity available to those undertakings to protect their interests immediately and to avoid the harm arising from the Commission’s unlawful access to the contested documents, it cannot, in my view, be legitimately argued that mounting that opposition constitutes an excessive burden for those undertakings, hampering de facto their right to an effective remedy.

75.

Furthermore, it is clear from paragraph 49 of the judgment in Akzo that, contrary to the appellants’ claim, the General Court found that an act open to challenge exists not only when the Commission agrees to place the contested documents in a sealed envelope before subsequently rejecting the challenge raised by the inspected undertaking, but also when it decides to seize them. The appellants are not therefore, in my opinion, justified in claiming that actions based on the Akzo case-law require ‘a number of preconditions over which the Commission alone has control’.

76.

Similarly, in my view, the appellants’ argument that the legal remedy of interim relief referred to in paragraph 96 of the judgment under appeal cannot be easily accessed by the undertakings concerned because, by exercising it, they have turned their focus away from the ongoing investigation cannot succeed. I have difficulty in seeing how simply making an application for interim relief to the General Court, making it possible to contest immediately the lawfulness of the ongoing inspection operations, can constitute an excessive burden for the inspected undertaking, particularly since such a remedy raises the prospect of having the implementation of the contested operations suspended.

77.

Lastly, nor can I agree with the appellants’ argument that the remedy taking the form of an obstruction cannot constitute an effective remedy since it requires the inspected undertaking to act in breach of its duty to cooperate with the Commission to the point of having a penalty imposed on it.

78.

In support of that argument, the appellants rely on the settled case-law of the Court, recently confirmed in the judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), ( 49 ) that respect for the essence of the right to an effective remedy enshrined in Article 47 of the Charter, which includes the right of access to a court, precludes the person who holds that right from being compelled, in order to access such a court, to infringe a legal rule or obligation or to be subject to the penalty attached to that offence.

79.

In that regard, I note, in the first place, that an action against a decision of the Commission adopted pursuant to Article 23 of Regulation No 1/2003 in case of obstruction of the inspection is not the only means available to the inspected undertakings of contesting the lawfulness of the operations by which the inspection is conducted. In that respect, the situation of those undertakings is not comparable with that of the applicant companies in the cases in the main proceedings that gave rise to the request for a preliminary ruling at the origin of the judgment in État luxembourgeois, since the undertakings were not deprived of their right to access a court unless they infringed a legal rule or obligation, making themselves subject to a penalty for that offence. In particular, in the abovementioned cases, the decision ordering those companies to provide the information requested specified that an action could not be brought against it. ( 50 ) By contrast, undertakings subject to an inspection decision can challenge before the General Court both the legality and the necessity of that decision, without being in any way obliged in so doing to render themselves liable to any penalty whatsoever. They can also exercise the different legal remedies listed by the General Court to seek a review of the lawfulness of the inspection operations or to claim compensation for any harm suffered in connection with the conduct of those operations.

80.

In the second place, and as I have already had occasion to note in point 53 of this Opinion, following the – in my view correct – approach taken by the General Court in the judgment under appeal, consisting in conducting a global analysis of all the remedies provided by the system established within the European Union, no remedy can be ruled out a priori, even where it can be exercised only in specific situations and where certain conditions are met. Furthermore, I would point out in that regard that, in the judgment in Delta Pekárny, the ECtHR itself – which, as I have also already noted, adopted an approach similar to that of the General Court in the judgment under appeal – did not exclude a priori from its analysis the relevance of an action against the decision by which the competition authority had penalised the applicant undertaking for being obstructive during the inspection, but rather assessed whether, in the context of such an action, that undertaking had had the opportunity to contest the legality and the necessity of the inspection decision. ( 51 )

81.

In the third place, it should be noted that the adoption of an obstruction decision is just one of the possible outcomes of the exercise of the right to oppose afforded to undertakings under inspection under Article 20(6) of Regulation No 1/2003. ( 52 ) It represents the occurrence of an, as it were, ‘abnormal’ stage of the conduct of the inspection. The Commission can apply the penalty mechanism provided for in Article 23 of Regulation No 1/2003 only in cases of clear obstruction or abusive exercise of the right to oppose, and not as a threat in order to obtain concessions from the undertakings which go beyond the strict confines of their duty to cooperate. ( 53 )

82.

Beyond such special cases, throughout the inspection procedure the undertakings concerned enjoy the right, with a view to defending their interests, to oppose inspection operations which they consider to be in breach of the limits imposed on the Commission. ( 54 ) As I have already set out, by exercising that right, those undertakings can seek and obtain an implicit or explicit view from the Commission on the merits of the grounds forming the basis of such an opposition, which they will be able to challenge before the General Court subject to the conditions laid down in Article 263 TFEU, whilst complying with their duty to cooperate.

83.

In the light of the foregoing considerations, it is my view that the second complaint of the first ground of appeal is likewise unfounded.

84.

For all the reasons which I have set out, I suggest that the Court reject the first ground of appeal.

85.

By their second ground of appeal, the appellants allege that the General Court infringed Articles 6 and 8 ECHR, Article 296 TFEU and Article 20(4) of Regulation No 1/2003 in that it disregarded the Commission’s obligation to state reasons when it adopts an inspection decision, as well as the duty of that institution to limit in so far as possible the scope of the investigations to be carried out. This ground relates in particular to paragraphs 121 to 147 of the judgment under appeal, by which the General Court rejected the fourth plea in law, alleging a failure to state reasons, and to paragraphs 158 to 165 of that judgment.

86.

The appellants claim, in the first place, that the General Court failed to conduct any review of the degree of precision of the statement of reasons for the decisions at issue, since it was content with the identification of the markets for supply and with the mention of a possible practice of information exchanges between the distributors and/or their alliances, potentially covering all price-related aspects of negotiations with suppliers, even though, following the Commission’s response to the measures of organisation of procedure adopted by the General Court, the presumptions set out had been significantly scaled back.

87.

In the second place, they claim that the General Court should have found that the decisions at issue granted the Commission an unlimited scope of inspection, authorising it to engage in a genuine ‘fishing expedition’, allowing it to seize any document relating to their supplies in Europe and their sales in France.

88.

In the third place, according to the appellants, the General Court did not conduct an effective review of the appropriateness of the scope defined in Article 1(a) of the decisions at issue to the indicia at issue.

89.

Finally, the appellants allege that the General Court erred in law by finding, in paragraph 161 of the judgment under appeal, that the inspection decision does not have to specify the length of the inspection, whether on the basis of the obligation to state reasons or on that of the principle of proportionality.

90.

The Commission contests all the complaints put forward by the appellants in their second ground of appeal.

91.

It should be recalled that Article 20(4) of Regulation No 1/2003 requires the Commission to state the reasons for a decision ordering an inspection, specifying the subject matter and the purpose of that inspection.

92.

As the Court has made clear, that obligation to state reasons is a fundamental requirement intended not only to show that the proposed entry onto the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence. ( 55 ) It follows that the scope of the obligation to state the reasons on which decisions ordering investigations are based cannot be restricted on the basis of considerations concerning the effectiveness of the investigation. ( 56 ) Furthermore, since a search may be made only for documents that come under the subject matter of the investigation, the statement of reasons for the inspection decision also has the effect of circumscribing the powers conferred on the Commission’s agents. ( 57 )

93.

In order to comply with that obligation to state reasons, the Commission must clearly indicate the presumed facts which it intends to investigate, ( 58 ) namely the evidence sought and the matters to which the inspection must relate. ( 59 )

94.

However, it is not required to communicate to the addressee of a decision ordering an investigation all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements. ( 60 ) Nor is it essential in a decision ordering an inspection decision to define precisely the relevant market, to set out the exact legal nature of the presumed infringements or to indicate the period during which those infringements were committed, provided that that inspection decision contains the essential elements set out in point 93 of this Opinion. ( 61 )

95.

In view of the fact that inspections take place at the beginning of an investigation, the Commission still lacks precise information to make a specific legal assessment and must first verify the accuracy of its suspicions and the scope of the incidents which have taken place, the aim of the inspection being specifically to gather evidence relating to a suspected infringement. ( 62 )

96.

In the present case, as regards the first complaint raised by the appellants in their second ground of appeal, alleging an insufficient review of the statement of reasons for the decisions at issue, I note that Article 1(a) of those decisions contained both a clear indication of the presumed infringement to which the inspection related, namely an ‘exchange of information’ concerning ‘prices’ and ‘discounts’, and a definition of the markets on which that infringement was said to be occurring. With regard, first, to the markets for goods, that provision referred to the market ‘for the supply of fast-moving consumer goods in the food products, hygiene products and cleaning products sectors’, in relation to discounts, and the market ‘for the sale of services to manufacturers of branded products in the foods products, hygiene products and maintenance products sectors’, in relation to prices. As for, second, the definition of the geographic market, that market was indicated as covering the territory of ‘several Member States, notably [that of] France’. Lastly, that provision contained details concerning the other undertakings participating in the presumed infringement.

97.

In view of the information contained in Article 1(a) of the decisions at issue set out in the preceding point and in the light of the abovementioned case-law, it is my view that the General Court did not err in law in concluding, in paragraph 130 of the judgment under appeal, that the Commission had satisfied its obligation to specify the presumed facts which it intended to investigate.

98.

As for the appellants’ arguments based on the clarifications made by the Commission concerning the nature of the restrictions at issue in response to the measures of organisation of procedure ordered by the General Court, ( 63 ) it must be pointed out that the information to which the appellants refer is contained in extracts of the non-confidential version of the indicia on the basis of which the Commission had suspected collusive practices concerning discounts and prices, which the General Court asked to be produced in order to ascertain whether those indicia were sufficiently serious to justify the adoption of the decisions at issue in relation to the aforementioned practices. ( 64 )

99.

It must be borne in mind that, in accordance with the case-law mentioned in point 94 of this Opinion, the Commission is not required, in order to comply with its obligation to state reasons, to communicate to the addressee of a decision ordering an investigation all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements.

100.

It follows that the appellants cannot infer from the fact that the presumed infringements relating to discounts and prices are described in greater detail in the extracts of the non-confidential version of the indicia in the possession of the Commission and produced by it before the General Court that the General Court ‘failed to conduct any review of the precise nature of the statement of reasons for the [decisions at issue]’. ( 65 )

101.

As for the appellants’ claim that the General Court erred in law and distorted the meaning of the abovementioned case-law in that it held, in paragraphs 250 and 254 of the judgment under appeal, that the geographic scope of the practices and the appellants’ role in the purported infringement could be duly inferred from the mere mention, in the statement of grounds for the inspection decisions, of the alliance of which Intermarché was a member, it is sufficient to state that those paragraphs appear in the part of the grounds of the judgment under appeal in which the General Court examines the sufficiently serious nature of the indicia in the Commission’s possession.

102.

Accordingly, as that institution correctly observed in its written observations, the claim stems from confusion between a review of compliance with an essential procedural requirement, the obligation to state reasons for the contested measure, and a review of the merits of that reasoning, which entails examination of the substantive legality of that measure. ( 66 )

103.

Both the third complaint – which, moreover, the appellants simply state without explaining –, alleging a lack of effective review of the appropriateness of the scope defined in Article 1(a) of the decisions at issue to the indicia held by the Commission and the second complaint of the same ground, alleging that the General Court failed to acknowledge that the inspection decisions had unlimited scope, thereby authorising a genuine ‘fishing expedition’, stem from that same confusion.

104.

With regard, more specifically, to the latter complaint, first, I note that, in paragraph 124 of the judgment under appeal, the General Court had already – rightly – observed that the question raised by the appellants to ascertain whether the Commission had engaged in such an ‘expedition’ – which Regulation No 1/2003 cannot authorise ( 67 ) –, turned on the sufficiency of the indicia at the Commission’s disposal when the decisions at issue were adopted, and that, therefore, that question had to be examined in the context of the plea in law alleging infringement of the right to the inviolability of the domicile of the inspected undertakings, not as part of the plea alleging that insufficient reasons were stated for those decisions.

105.

Second, I note that, in support of that same complaint, the appellants refer to the scope of the decisions at issue as set out not only in Article 1(a) thereof but also Article 1(b) thereof, which mentioned a presumed infringement concerning exchanges of information concerning ‘future business strategies’, particularly in terms of product range, development of shops, e-commerce and advertising policy ‘in the markets for the supply of fast-moving consumer goods and in the markets for consumer sales of fast-moving consumer goods, in France’. However, since Article 1(b) of those decisions was definitively annulled by the General Court in paragraph 1 of the operative part of the judgment under appeal, the appellants are, in any event, no longer permitted to rely on the content of that provision to substantiate their arguments based on the excessively broad scope of the subject matter of the inspection.

106.

Since the claim referred to in point 102 of this Opinion and the complaints set out in point 103 of this Opinion should be interpreted by the Court of Justice as seeking to call into question the General Court’s assessment regarding the indicia at the Commission’s disposal, it must be stated, first, that that claim and those complaints are wholly unsubstantiated and, second, that, since a distortion of those indicia has not been invoked, the Court of Justice does not, in any event, have jurisdiction to examine them in the context of an appeal. ( 68 )

107.

Finally, as for the fourth complaint raised by the appellants in their second ground of appeal, I note that that complaint is directed against paragraphs 158 to 165 of the judgment under appeal, which are part of the examination of the plea in law alleging infringement of the right of inviolability of the home and, in particular, in the section of that analysis devoted to the review of compliance with the principle of proportionality. In those paragraphs, relying on its earlier case-law, the General Court took the view that the fact that the Commission had not set a deadline for conducting the inspection operations did not constitute a disproportionate interference in the sphere of the appellants’ private activities.

108.

In that regard, it must be borne in mind that Article 2 of the decisions at issue determined the date from which the inspection could take place, but did not state the date on which it was to end. Such a specification was consistent with Article 20(4) of Regulation No 1/2003, which requires the Commission to set the start date of the inspection but remains silent in relation to any obligation to set the inspection’s end date.

109.

As the General Court rightly observed in paragraph 161 of the judgment under appeal, the absence of an end date for the inspection does not mean that it can go on indefinitely, since the Commission is, in that regard, required to observe a reasonable time limit in accordance with Article 41(1) of the Charter. ( 69 )

110.

It follows that, although the temporal scope of an inspection decision does not have to be determined in advance in its entirety, it is necessarily structured such that the inspection operations do not exceed a reasonable period, as assessed according to all the relevant circumstances and factors of the case in question.

111.

First, that temporal framework constitutes – at the very least where the inspection takes place without the Commission having recourse to the national enforcement measures, pursuant to Article 20(6) to (8) of Regulation No 1/2003 – an appropriate and sufficient safeguard against arbitrariness, in particular where, when assessing the reasonableness of the duration of the inspection operations, account is taken of the requirement to limit the temporal effects of the interference which violates the rights set out in Article 7 of the Charter and Article 8 ECHR to what is strictly necessary for the investigations required vis-à-vis the subject matter of the inspection.

112.

Second, such a temporal framework guarantees, as observed by the General Court in paragraphs 163 and 164 of the judgment under appeal, the effectiveness of the Commission’s investigative powers, which requires that the duration of the inspection is tailored not only to the information known in advance but also to the information that comes to light only after the adoption of the inspection decision – such as the volume of information identified at the premises, the investigation technologies used ( 70 ) and the conduct of the undertakings inspected –, whilst ensuring that the account taken in advance of that uncertain information does not lead the Commission to determine, in the decision ordering the inspection, an inspection duration that is greater than that which is strictly necessary.

113.

In view of all the foregoing considerations, I consider that the second ground of appeal is unfounded in its entirety.

114.

By their third ground of appeal, the appellants allege that the General Court erred in law and infringed Regulation No 1/2003 by classifying a procedural phase preceding the adoption by the Commission of measures which involve the allegation of an infringement as not subject to that regulation. This ground of appeal is directed against paragraphs 189 to 196 of the judgment under appeal, which appear in the part of that judgment in which the General Court examined the sufficiently serious nature of the indicia in the Commission’s possession.

115.

In paragraph 189 of the judgment under appeal, the General Court observed, as a preliminary point, that the assessment of the sufficiently serious nature of the indicia in the Commission’s possession must have regard to the fact that the inspection decision ‘forms part of the preliminary investigation stage, which is intended to enable the Commission to gather all the relevant evidence confirming the existence or non-existence of an infringement of the competition rules and to adopt an initial position on the approach to be taken and the subsequent procedure to be followed’. In paragraph 190, it explained that, therefore, the Commission cannot be required ‘at that stage’, before it adopts an inspection decision, to be in possession of evidence showing the existence of an infringement, and that a distinction must be drawn between, ‘on the one hand, proof of an infringement and, on the other, indicia of such a kind as to give rise to a reasonable suspicion leading to presumptions of an infringement’.

116.

In paragraphs 192 and 193 of the judgment under appeal, the General Court stated that that distinction ‘has consequences [inter alia] for the requirements relating to the form … of the indicia that justify the inspection decisions’ and that ‘those indicia cannot be subject to the same degree of formality as that relating in particular to compliance with the rules laid down by Regulation No 1/2003 and by the case-law based on that regulation concerning the Commission’s investigative powers’. In the General Court’s view, ‘if the same formalism were required for the gathering of indicia before an inspection and the gathering of proof of an infringement, that would mean that the Commission would have to comply with the rules governing its investigative powers, even though no investigation within the meaning of Chapter V of Regulation No 1/2003 has yet been formally initiated and although the Commission has not yet made use of the investigative powers conferred on it in particular by Articles 18, 19 and 20 of Regulation No 1/2003, that is to say, it has not adopted a measure implying an accusation of having committed an infringement, notably an inspection decision’ (paragraph 193 of the judgment under appeal). According to the General Court, ‘that definition of the starting point of an investigation and of the preliminary inquiry stage emerged from a consistent line of case-law’ (paragraph 194 of the judgment under appeal).

117.

In paragraph 196 of the judgment under appeal, the General Court stated that the provisions with which the Commission was not required to comply included the requirements laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation (EC) No 773/2004, ( 71 ) as interpreted in the judgment of 6 September 2017, Intel v Commission. ( 72 )

118.

In paragraph 206 of the judgment under appeal, the General Court therefore concluded that, in the present case, the Commission was not required to record minutes of interviews held in 2016 and 2017 with the 13 suppliers of fast-moving consumer goods concerned by the inspection who regularly entered into agreements with Casino and ITM (‘the interviews with the suppliers’), and that the indicia resulting from those interviews could not be rejected as vitiated by a formal irregularity on the ground of non-compliance with the requirement to record interviews laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.

119.

The appellants submit, in the first place, that the definition of the starting point of an investigation and of the preliminary inquiry stage contained in the judgment under appeal is the result of a distortion of the case-law of the Court. The sole distinction made in terms of applicable law in all the judgments cited in paragraph 194 of that judgment, which concern, moreover, merely the assessment of the starting point of the period to be taken into consideration to assess the reasonable length of the proceedings, is the ‘distinction between the two stages of the administrative procedure, that is, the investigate stage prior to the notification of the statement of objections and the stage making up the remainder of the administrative procedure’, as indeed follows from Regulation No 773/2004 itself.

120.

In the second place, the appellants claim that the General Court erred in law in that it found, contra legem, that Regulation No 1/2003 does not apply prior to the adoption of an initial inspection decision, whereas, in their view, it follows both from recital 25 of that regulation and from Article 2(3) of Regulation No 773/2004 that it ‘applies fully to all measures adopted by the Commission in implementation of Article 101 et seq. TFEU, from when practices are detected’. That interpretation is confirmed by the fact that both investigations into sectors, as provided for in Article 17 of Regulation No 1/2003, and the leniency declaration, ( 73 ) which do not include the adoption of measures implying an accusation of having committed an infringement, are subject to the requirements under that regulation.

121.

In the third place, the appellants contest the conclusions drawn by the General Court from the distinction between evidence of an infringement and indicia forming the basis of an inspection decision, and, in particular, the finding contained in paragraph 193 of the judgment under appeal that those indicia cannot be subject to the same degree of formality. They submit that all the material gathered by the Commission and used in procedures initiated on the basis of Regulation No 1/2003, whether in the form of indicia or evidence, must satisfy the same requirements and be subject to the same formalities and the same procedural rules intended to ensure the authenticity, reliability and credibility of the material. Compliance with those rules guarantees the authenticity both of evidence and of indicia, which is a necessary pre-requisite prior to the assessment of its credibility.

122.

The Commission alleges that the probative value required for material elements to constitute indicia on the basis of which an inspection decision may be adopted is necessarily lower than the probative value required for material elements to constitute evidence for the purposes of establishing an infringement, and that it follows from that distinction that indicia are necessarily subject to a lower degree of formality than evidence.

123.

Specifically, there is no requirement that such indicia are recorded pursuant to Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, unless the view is to be taken that the formality laid down in those provisions applies even before an investigation has been initiated.

124.

In that regard, the Commission states that the opening of an investigation – which corresponds to the date on which the Commission makes use of its powers of investigation for the first time and adopts measures implying an accusation of having committed an infringement and entailing major repercussions on the situation of the entities under suspicion – occurs at a different time and has separate legal consequences from the opening of a file and the initiation of proceedings within the meaning of Article 2 of Regulation No 773/2004. While the opening of a file is an internal measure adopted by the registry of the Directorate-General for Competition when it assigns a case number, the sole effect of which is to allow the Directorate-General for Competition to save documents, the initiation of the proceedings occurs on the date on which the Commission takes a decision under Article 2 of Regulation No 773/2004 with a view to adopting a decision pursuant to Chapter III of Regulation No 1/2003.

125.

The Commission observes that it follows from the wording of Article 19 of Regulation No 1/2003 that an ‘interview’ within the meaning of that article must be conducted with a view to ‘collecting information relating to the subject matter of an investigation’, which by definition must have previously been initiated. Furthermore, it contests the relevance of the references made by the appellants to recital 25 of Regulation No 1/2003 and to investigations into sectors and the leniency declaration.

126.

In the present case, the meetings and teleconferences with the 13 suppliers concerned took place before the initiation of an investigation under Regulation No 1/2003 and therefore before any ‘proceedings’. The Commission was therefore not obliged to comply with the formalities required under that instrument.

127.

If this were not the case, the Commission’s implementation of competition law would be undermined in several respects. In the first place, this would prevent the Commission from gathering and using indicia where they exist only in oral form, for example a disclosure heard by a Commission representative at a meeting, during an informal visit to premises or in a public place. In the second place, this would amount to taking the view that indicia can never be in oral form, which would compromise the effectiveness of the Commission’s investigations by delaying the inspection date.

128.

Furthermore, in the Commission’s view, making indicia subject to a lower degree of formality than evidence ensures the imperative of speed that guides the adoption of inspection decisions and the effectiveness of the Commission’s investigation.

129.

Finally, the Commission adds that, in any event, the appellants’ claims concerning the authenticity of the evidence are based on a misreading of case-law. The authenticity of evidence is not a ‘necessary pre-requisite’ for its credibility. The prevailing principle in EU law is that of the free consideration of evidence, from which it follows that the only relevant criterion in assessing the probative value of lawfully adduced evidence is its credibility and that the probative value of evidence must be assessed comprehensively, such that raising mere unsubstantiated doubts as to the authenticity of evidence is not enough to compromise its credibility. Those principles apply a fortiori to indicia because the probative value required for material elements to constitute indicia is, by definition, lower.

130.

It should be recalled that, under Article 19(1) of Regulation No 1/2003, the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation. Interviews based on that provision are subject to observance of the formal requirements laid down in Article 3 of Regulation No 773/2004. Thus, pursuant to paragraph 1 of that article, the Commission is to state, at the beginning of the interview, the legal basis and the purpose of that interview, recall its voluntary nature and inform the person interviewed of its intention to make a record of the interview. Under paragraph 3 of the article, the Commission may record the statements made by the persons interviewed in any form. A copy of any recording is to be made available to the person interviewed for approval. Where necessary, the Commission is to set a time limit within which the person interviewed may communicate to it any correction to be made to the statement.

131.

In the judgment in Intel, the Court clarified, as regards the scope of the formal requirements to which interviews conducted in accordance with Article 19 of Regulation No 1/2003 are subject, that, if the Commission decides, with the consent of the person interviewed, to carry out an interview on the basis of that provision, it must record that interview in full, without prejudice to the fact that the Commission is free to decide on the type of recording. ( 74 )

132.

It follows that the Commission is required to record, in a form of its choosing, any interview which it conducts, under Article 19 of Regulation No 1/2003, for the purpose of collecting information relating to the subject matter of an investigation. ( 75 )

133.

In the judgment under appeal, the General Court concluded, in essence, that that requirement did not apply to the interviews with the suppliers since, first, those interviews had been conducted prior to the initiation of an investigation under Regulation No 1/2003, that is to say, before the Commission adopted a measure implying an accusation of having committed an infringement, and, second, that, in order to adopt an inspection decision, which is part of the preliminary investigation stage preceding the notification of the statement of objections, the Commission is required merely to have material and serious indicia capable of creating a suspicion of an infringement, which cannot be subject to the same degree of formality as that required to gather evidence of an infringement. The appellants contest that finding by various arguments, whereas the Commission is of the view that it is not vitiated by any error of law.

134.

Accordingly, in order to rule on the third ground of appeal, the Court will be required to clarify whether the Commission is obliged, pursuant to Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, to make a record of the interviews revealing the information used as indicia to justify the adoption of an inspection decision within the meaning of Article 20(4) of Regulation No 1/2003.

135.

It is my view that that question must be answered in the affirmative, for the reasons that I shall set out below.

136.

The complaints raised by the appellants call on the Court to address (i) the question of the point of the investigation of a matter by the Commission from which interviews conducted by the Commission must be regarded as being carried out ‘for the purpose of collecting information relating to the subject matter of an investigation’ and (ii) the question whether the lower probative value required for the indicia forming the basis of an inspection decision as compared with the evidence of an infringement justifies those indicia being subject to a lesser degree of formality, which does not include in particular compliance with the formal requirements laid down in Article 3 of Regulation No 773/2004 in relation to interviews conducted pursuant to Article 19 of Regulation No 1/2003.

137.

I shall begin by considering the second of those questions.

138.

In that regard, I consider that neither the lower probative value required of indicia forming the basis for an inspection decision nor the fact that such a decision is part of the preliminary inquiry stage that precedes the notification of a statement of objections has, in my view, and contrary to the findings made in paragraphs 189 to 192 of the judgment under appeal, any bearing on the formal requirements with which the Commission must comply, on the basis of the applicable legislation, when it gathers evidential material to be used for the purposes of its investigations.

139.

The foregoing does not, of course, mean that the form of material elements has no bearing on their probative value. For example, a notarial act has, as a general rule, a greater probative value than that of a private deed. However, that relationship between form and probative value does not necessarily mean that there is a sliding scale of formality to which certain categories of evidential material are subject according to the probative value required for that material to be used.

140.

With regard, in particular, to the information obtained by the Commission from the interviews that it conducts with natural or legal persons, the lack of any connection between probative value and compliance with the formal requirements laid down in Article 19(1) of Regulation No 1/2003 and Article 3 of No 773/2004 can be deduced, in my opinion, from the judgment in Intel.

141.

It is clear from that judgment, and in particular from paragraph 87 thereof, in which the Court made clear that there is nothing in the wording of Article 19(1) of Regulation No 1/2003 or in the objective that it pursues to suggest that the legislature intended to establish a distinction between different categories of interview under that provision or to exclude certain of those interviews from the scope of that provision, that the obligation to record under the provision covers every interview conducted by the Commission, provided that it ‘relat[es] to the subject matter of an investigation’. The existence of such an obligation cannot therefore turn on either the probative value that might be accorded to the statements obtained during those interviews, which – moreover – can be assessed only once the interviews have taken place, or the use that the Commission intends to make of that information during the various stages of the proceedings. In that regard, the reference made by the Commission to the travaux préparatoires for Regulation No 1/2003 appears to me incapable, in itself, of calling into question that conclusion. ( 76 )

142.

I note, furthermore, that the assertion that a link exists between the probative value of the indicia forming the basis of an inspection decision and compliance with formal requirements, which appears in paragraphs 189 to 192 of the judgment under appeal, is contradicted, as regards indicia obtained from interviews conducted by the Commission, by the General Court’s reading, in paragraphs 195, 200 to 203 and 205 of that same judgment, of Article 19 of Regulation No 1/2003 and the judgment in Intel. It is apparent from those paragraphs that the General Court took the view that once an investigation within the meaning set out in paragraph 194 of the judgment under appeal has been initiated, the Commission is, in principle, obliged to comply with the requirement to record interviews relating to the subject matter of that investigation, and that such an obligation exists regardless of the probative value of the information that the Commission may obtain from those interviews and irrespective of the use of that information, whether as indicia, in the preliminary investigation stage, including for the purpose of adopting an inspection decision, ( 77 ) or as evidence, when a statement of objections is notified.

143.

More generally, the difference between indicia and evidence lies in the fact that the former simply allow the existence of the fact that is to be established to be presumed, whereas the latter proves its existence. Where the production of evidential material requires a certain degree of formality, often in order to ensure its authenticity and credibility, a failure to comply with such formality means that that material, regardless of its value, cannot perform its probative function.

144.

As for the first of the questions mentioned in point 136 of this Opinion, it involves, in essence, interpreting the concept of an ‘interview’ with the purpose of ‘collecting information relating to the subject matter of an investigation’ within the meaning of Article 19(1) of Regulation No 1/2003.

145.

I note that, in the judgment under appeal, the General Court found that it was apparent from the actual wording of that provision that the interviews concerned are those held for the purpose of ‘collecting information relating to the subject matter of an investigation’, which by definition must have been initiated and the subject matter of which must have been fixed before those interviews are carried out. It inferred from that fact that the obligation to record such interviews, as laid down in Article 3 of Regulation No 773/2004, did not apply ‘in the case of interviews carried out before an investigation is initiated by the Commission …’. ( 78 ) In paragraph 193 of the judgment under appeal, the General Court essentially took the view that an investigation is formally initiated only when the Commission makes use of the investigative powers conferred on it in particular by Articles 18, 19 and 20 of Regulation No 1/2003, by adopting a measure implying an accusation of having committed an infringement, notably an inspection decision, and, in paragraph 194 of that judgment, it explained that that definition of the starting point of an investigation had emerged from a consistent line of case-law.

146.

It follows from that case-law – established in the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission ( 79 ) – that the administrative procedure conducted by the Commission may involve an examination in two successive stages, each of which has its own internal logic. The first stage, covering the period up to the notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the EU legislature, takes measures involving a complaint that an infringement has been committed and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage, in turn, runs from the notification of the statement of objections to the adoption of the final decision. It must enable the Commission to reach a final decision on the alleged infringement.

147.

In that regard, it must be recalled, as the appellants point out, that the principles set out in the preceding point were established for the purposes of applying the ‘reasonable time’ principle. In the judgment in LMV, guided by the case-law of the ECtHR, ( 80 ) the Court intended to identify the point at which the activity of investigating and detecting infringements of competition law engaged in by the Commission takes concrete form in a measure involving if not a formal accusation then at the very least a complaint ‘having a significant impact on the situation of the suspected undertakings’. ( 81 )

148.

However, like the appellants, I am unconvinced that the logic underlying the determination of the starting point of the period to be taken into consideration for the purposes of assessing the reasonable length of the administrative procedure, which seeks to identify the point at which the undertaking concerned learns of the complaint made in its regard or at which its situation is affected by the measures adopted by the Commission, is relevant when it comes to interpreting the wording of Article 19 of Regulation No 1/2003.

149.

In that regard, I note that that article appears in Chapter V of that regulation, which is entitled ‘Powers of investigation’. When it conducts an interview within the meaning of that provision, the Commission therefore exercises an ‘investigative power’, in the very same way that it exercises such a power when it makes requests for information under Article 18 of the Regulation or where it adopts an inspection decision within the meaning of Article 20 of that same regulation. However, while it is established that the adoption of a measure under Articles 18 and 20 of Regulation No 1/2003 causes an ‘investigation’ to be initiated, by contrast, in line with the interpretation of Article 19 of Regulation No 1/2003 adopted by the General Court and supported by the Commission, use of the power provided for in that article does not, in itself, mark the start of such an investigation, but rather requires, in order to be exercised, that an investigation has already been initiated.

150.

This is, in my view, a point of inconsistency that cannot be remedied by the implicit recognition, by the General Court, that conducting an interview within the meaning of Article 19 of Regulation No 1/2003 signals – like a request for information or an inspection – the initiation of an investigation where such an interview involves a complaint that an infringement has been committed by one of the undertakings interviewed or by an undertaking mentioned in statements made to the Commission. ( 82 ) Such recognition calls into question the General Court’s assertion that it follows from the wording of Article 19 of Regulation No 1/2003 that an investigation must have been initiated and its subject matter fixed before those interviews are carried out under that article. In addition, it is only partially consistent with the logic underlying the case-law cited in paragraph 194 of the judgment under appeal, since the accusation of a third-party undertaking in the course of an interview does not mean that that undertaking learns of any complaints raised in its regard.

151.

The inconsistency noted in the preceding point of this Opinion is all the more evident bearing in mind that, as the appellants have rightly observed, the Commission can initiate a sector investigation by making use of the power provided for in Article 17 of Regulation No 1/2003 without a complaint of an infringement having been committed being addressed to a particular undertaking. ( 83 )

152.

In my view, the wording of Article 19 of Regulation No 1/2003, and in particular the words ‘for the purpose of collecting information relating to the subject matter of an investigation’, should be interpreted differently, and in such a way that the interviews in question do not necessarily have to take place in a particular stage of the administrative procedure and there is no need to determine with effect from which formal measure adopted by the Commission that institution is obliged to comply with the formal requirements under Article 3 of Regulation No 773/2004.

153.

I am of the view that the definition of the scope of that obligation, and therefore the determination of those cases in which the power laid down in Article 19 of Regulation No 1/2003 is exercised, is essentially dependent on the subject matter and the content of the interviews conducted by the Commission.

154.

In the present case, it is apparent from the judgment under appeal and from the file in the proceedings before the General Court that the interviews at issue were conducted with suppliers of fast-moving consumer goods concerned by the presumed infringement set out in Article 1(a) of the decisions at issue, that those suppliers regularly entered into agreements with Intermarché and that, in preparation for those interviews, the Commission had sent the suppliers interviewed questionnaires concerning inter alia the conduct of the distributors’ alliances during the negotiations with the suppliers, the development over time of their negotiating power and the effects of that power on the competition conditions on the market for distribution. In that questionnaire, the Commission also explicitly asked whether the supplier was aware of exchanges of sensitive commercial information between distributors within an alliance and, if so, to specify the nature of that information. Furthermore, it is clear from the judgment under appeal that the interviews at issue were conducted shortly after a convention had been held on 16 September 2016 at Intermarché’s headquarters in the presence of representatives of the alliances, which the retail chain’s suppliers had been invited to attend, and which continued until the day before the adoption of the decisions at issue.

155.

When it conducts interviews having such content, the subject matter of which is determined in advance and the goal of which is explicitly to obtain information about the functioning of a particular market and the conduct of the stakeholders on that market with a view to detecting any unlawful conduct or consolidating its suspicions as to the existence of such conduct, the Commission exercises, in my view, its power under Article 19 of Regulation No 1/2003, regardless of the stage of the procedure in which the interview takes place.

156.

In such circumstances, it is sufficient, to my mind, for a file to have been opened at the Commission’s registry to take the view that such interviews are conducted with the aim of ‘collecting information relating to the subject matter of an investigation’ within the meaning of that provision. ( 84 ) In other words, as Advocate General Wahl stated in his Opinion in Intel Corporation v Commission, ( 85 )‘any meeting with a third party which is specifically arranged to collect substantive information to be employed in the assessment of a case must fall within the scope of Article 19 of Regulation No 1/2003’. ( 86 )

157.

The – in my view – unacceptable end result of adopting a different interpretation would be that interviews having the content described above would take place outside the legal framework formed by Regulation No 1/2003. Yet when the Commission exercises de facto its powers of investigation, such a legal framework necessarily applies, even where an investigation has not been ‘formally initiated’, contrary to what appears to be stated in paragraph 193 of the judgment under appeal. ( 87 )

158.

This is a fortiori the case where, as here, the information obtained by conducting such interviews is used as serious indicia forming the basis of an inspection decision, namely a measure entailing interference within the sphere of private activities of an undertaking and a restriction of its fundamental rights enshrined in Article 7 of the Charter and Article 8 ECHR.

159.

Lastly, I would point out that the interpretation of Article 19 of Regulation No 1/2003 that I propose adopting does not mean, contrary to the Commission’s argument, that that institution would no longer be able to gather and use indicia where they may exist only in oral form.

160.

In that connection, first, it should be recalled that the scenario described in point 154 of this Opinion bears little resemblance to that mentioned by the Commission in its written observations (a representative of the Commission who hears a disclosure at a meeting, during an informal visit to premises or in a public place). Second, it should be made clear that the Commission does not carry out an interview under Article 19 of Regulation No 1/2003 and is not, therefore, under any requirement to record its exchanges with third parties where those exchanges do not relate to the subject matter of a particular investigation. ( 88 )

161.

On the basis of the foregoing considerations, it is my view that the General Court misinterpreted Article 19(1) of Regulation No 1/2003 and erred in law in finding that the indicia resulting from the interviews with the suppliers cannot be rejected as vitiated by a formal irregularity on the ground of non-compliance with the requirement to record interviews laid down in Article 3 of Regulation No 773/2004.

162.

If the Court were to decide to confirm the General Court’s interpretation of Article 19(1) of Regulation No 1/2003 and to take the view that the obligation to record the interviews conducted under that provision applies only where those interviews take place following the initiation of an investigation within the meaning specified in paragraphs 193 and 194 of the judgment under appeal, I am nevertheless of the view that the General Court was wrong to find that the Commission was not bound by that obligation in the present case.

163.

It is my view that where the Commission considers the possibility of using the information resulting from its exchanges with third parties for the purposes of adopting an inspection decision – as is quite clear in the present case in the light of the subject matter, content and timeline of the interviews that it conducted with the suppliers – it is, in any event, required to make a recording of those exchanges in accordance with Article 3 of Regulation No 773/2004. This is, in my view, a necessary safeguard in the light of the interference entailed by an inspection with the fundamental rights of the inspected undertaking, in particular with a view to enabling the Courts of the European Union to review the seriousness of the indicia held by the Commission and justifying such interference.

164.

In the light of all the foregoing considerations, I therefore suggest that the Court uphold the third ground of appeal.

165.

The fourth ground of appeal is divided into four parts. The first three parts, alleging respectively a distortion of the facts, an error of law and a manifest error of assessment by the General Court where it found, first, that an investigation had not been initiated prior to the adoption of the first inspection decision (the Tute 1 decision of 9 February 2017), second, that the minutes of interviews could be used as indicia without satisfying the requirements under Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004 and, third, that compliance with the degree of formality required by those provisions would undermine the detection of anticompetitive practices, are substantially the same as the arguments raised by the appellants in their third ground of appeal. I therefore refer to the considerations set out in my analysis of that ground of appeal.

166.

This therefore leaves me to consider the fourth part of the fourth ground of appeal.

167.

By the fourth part of their fourth ground of appeal, the appellants allege that the General Court erred in law by finding, in paragraph 219 of the judgment under appeal, that, on the date on which the decisions at issue were adopted, the Commission had sufficiently serious indicia, without it being necessary to specify precisely the dates on which the minutes of interviews were produced and finalised.

168.

First, they claim that it follows from case-law that the indicia forming the basis of an inspection decision must appear in the Commission’s file prior to the date on which that decision is adopted, in particular in order to allow the various parties involved in the process of drawing up that decision to verify the sufficiently serious nature of such indicia and to define the scope of the inspection correctly. The General Court was therefore wrong to take the view, in paragraph 208 of the judgment under appeal, that ‘the relevant date that must be taken into account for the purpose of determining whether the Commission was in possession of indicia on the date of the [decisions at issue] [was] the date of the interviews with the suppliers that were the subject matter of the minutes’.

169.

Second, the appellants argue that, in paragraph 215 of the judgment under appeal, the General Court transferred to them the burden of proving that the Commission had drafted all the minutes after the date of adoption of the first contested decision (the Tute 1 decision of 9 February 2017).

170.

The Commission contends that the relevant date for the purpose of assessing whether the Commission had indicia in its possession in the form of oral statements is the date of those statements and not the date on which they were formalised in writing. It refers in this regard to the judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, ( 89 ) adopted in the context of leniency procedures and mentioned in paragraph 209 of the judgment under appeal, from which it is apparent that the Commission’s possession of material elements amounts to knowledge of their content. In the present case, the interviews with the suppliers all took place before the date of the first contested decision (the Tute 1 decision of 9 February 2017). Furthermore, since the General Court acknowledged that, on the date on which the decisions at issue were adopted, the Commission already had indicia from the successive meetings or teleconferences with the 13 suppliers, the judgment under appeal did not grant the Commission a power to make rectifications a posteriori.

171.

I note, as a preliminary point, that it is clear from paragraphs 207 and 210 of the judgment under appeal that the grounds of that judgment contested by the appellants in the fourth part of their fourth ground of appeal are based on the premiss that, in the present case, the Commission was not required to record interviews pursuant to Article 3 of Regulation No 773/2004 and, therefore, that it did not have to establish the date on which the minutes of the meetings had been drawn up, as the anteriority of the indicia resulting from those interviews had to be assessed having regard to the date on which the statements were made, that is to say, the date on which the interviews took place. The General Court took the view that, where there is no obligation to record interviews, the indicia forming the basis of an inspection decision that result from interviews conducted by the Commission with third parties could exist only in oral form and that, in the present case, the interviews with the suppliers implied knowledge of the information communicated during those interviews and possession of the information in question on the date of the interviews.

172.

It follows that if the Court were to decide to uphold the third ground of appeal, as I propose, and regardless of the consequences of such a decision as far as concerns the setting aside or the continued validity of the judgment under appeal, which I shall discuss below, the paragraphs of the grounds of the judgment under appeal to which the part being examined relate would also necessarily be invalidated. I therefore set out the following considerations in the event that the Court were not to follow my proposal.

173.

As a further preliminary point, certain doubts can, in my view, be raised as to the effectiveness of this part, since it is directed against just one of the two grounds upon which the General Court bases the rejection of the complaint that the indicia forming the basis of the decisions at issue did not already exist because the Commission had failed to establish the date of the minutes of the interviews.

174.

In rejecting that argument, the General Court, first and primarily, took the view, as I mentioned in point 171 of this Opinion, that the relevant date that must be taken into account for the purpose of determining whether the Commission was in possession of the indicia resulting from the interviews with the suppliers prior to the adoption of the decisions at issue was the date on which those interviews were held. Second, in the alternative, it considered, in paragraph 215 of the judgment under appeal, that, even if it were the date on which the minutes of the interviews had been drawn up that had to be taken into account and even though the Commission has not provided proof of that date, the view could reasonably be taken, on the basis of the information produced by that institution and in light of the fact that it stated that it had drafted those minutes with a view to satisfying what it considered to be an obligation to record interviews within the meaning of Article 3 of Regulation No 773/2004, that those minutes had been drawn up as and when the exchanges took place, that is, from the beginning of those exchanges, most of which date from late 2016. ( 90 )

175.

Whilst it is true that the appellants have also raised a complaint against paragraph 215 of the judgment under appeal, that complaint concerns merely an alleged reversal of the burden of proof, which is by no means apparent from the reasoning of the General Court, which, by contrast, considered the information produced by the Commission to be sufficient to show that the bulk of the minutes of the interviews had been drawn up before the date of the first contested decision (the Tute 1 decision of 9 February 2017). However, the appellants did not call into question the standard of proof applied by the General Court or claim that the General Court had distorted evidence, the only complaint that would have allowed them to plead an error in the assessment of that evidence.

176.

If the Court were to decide to examine this part of this ground of appeal on its merits, I consider it to be well founded.

177.

In this regard, it should be borne in mind that the objective of the inspections carried out by the Commission is to gather the necessary documentation to check the actual existence and scope of a given factual and legal situation in relation to which it already has information. ( 91 ) It follows that, before adopting an inspection decision, the Commission must be in possession of information and evidence providing reasonable grounds for suspecting the infringement of which the undertaking that is the subject of the inspection is suspected. ( 92 ) Furthermore, the possession of such information and evidence must be shown, in a properly substantiated manner, in the decision ordering an inspection. ( 93 )

178.

Il follows from the foregoing that, in order to demonstrate that the indicia forming the basis of an inspection decision existed before the date on which that decision was adopted, it falls to the Commission not only to prove that, on that date, it was physically in possession of the source of the information upon which it relies to justify the inspection, but also that it was actually able to assess, first, whether and to what extent that information allowed assumptions to be made about the existence of an infringement and the key elements of that infringement to be defined, so as to limit the scope of the inspection and the information sought during the inspections, and, second, whether those indicia were of a serious nature.

179.

In other words, for the indicia forming the basis of an inspection decision to exist prior to the date of adoption of that decision, the information does not just have to be in the ‘possession’ of the Commission. This is why the assumption resulting from the case-law on leniency decisions mentioned in paragraph 209 of the judgment under appeal, namely that the mere possession of information by the Commission amounts to its knowledge of that information, does not, in my view, apply to inspection decisions, and therefore, contrary to the General Court’s finding, that case-law is not transposable to such decisions.

180.

Furthermore, in order to allow a judicial review of the non-arbitrary nature of the interference in the sphere of private activities of the undertaking concerned entailed by an inspection, the Commission is required to prove that the decision ordering the inspection is based on sufficiently serious indicia that it has actually been able to assess and that the scope of the investigations determined by that decision is confined to the infringement which the Commission may suspect on the basis of those indicia.

181.

In my view, such proof can be furnished, in the case of information obtained from third parties’ oral statements which have not been recorded pursuant to Article 3 of Regulation No 773/2004, only if a transcript or detailed minutes of the content of those statements is produced. I therefore tend towards the view that the relevant date that must be taken into account for the purpose of determining whether the indicia forming the basis of an inspection decision existed prior to the date of that decision is, in the case of indicia resulting from such statements, the date of production of a transcript or minutes of the exchanges between the Commission and the person(s) concerned when those statements were obtained.

182.

I would add that the requirement to adopt inspection decisions shortly after information about potential infringements is communicated in order to minimise the risks of leaks and of proof being concealed, as emphasised by the General Court in paragraph 210 of the judgment under appeal, cannot, in my view, lead to a universally applicable, general rule being established that the date on which the Commission receives the oral statements from which the indicia forming the basis of an inspection result is the sole relevant factor in establishing the anteriority of those indicia. Whilst I am quite clearly sympathetic towards such a requirement, I do not believe that it can justify the absence of any written record of the interviews conducted with third parties by the Commission, in the absence of formal measures to record those interviews, in particular in cases such as that at issue here where the interviews in question took place over several weeks, if not several months, therefore giving the Commission the time to draw up minutes as and when it received the statements from the suppliers.

183.

However, although I consider that, at the very least, minutes of the interviews on which the Commission relies in order to justify an inspection decision must, in so far as possible, have been included in the case file before the date of adoption of the inspection decision, ( 94 ) I am of the view that the need for swift action can justify the Commission departing from that rule in a specific case.

184.

In the light of all the foregoing considerations, I take the view that, if the Court were to decide to consider the merits of the fourth part of the fourth ground of appeal, that part should be held to be well founded.

185.

By their fifth ground, alleging a failure to state reasons as a result of the failure to review the probative value of the indicia and an error as to the characterisation as ‘indicia’, the appellants contest paragraphs 220 to 232, 253 and 254 of the judgment under appeal.

186.

They allege, in the first place, that the General Court did not carry out, as they had requested and as is required by Articles 6 and 8 ECHR, a review in concreto of the extent to which the numerous irregularities they complained of and which, in their view, vitiate the evidence produced by the Commission affect the credibility and therefore the probative value of that evidence.

187.

In that regard, it must be observed that, in paragraphs 224 to 232 of the judgment under appeal, the General Court did conduct such a review, assessing in turn the credibility and the probative value of the statements by the suppliers reproduced in the minutes of the interviews (paragraph 225), of an email dated 22 November 2016 from the managing director of a suppliers’ association, setting out the movements and the relationships between large retail chains within, in particular, large retailers’ associations (‘the email from the managing director of association N’) (paragraph 226), and of the minutes of the interviews drawn up by the Commission (paragraph 229). Moreover, in the same paragraphs of the grounds of the judgment under appeal, the General Court also examined and rejected all the arguments raised by the appellants seeking to call into question the credibility or the probative value of that different information and its characterisation as ‘indicia’.

188.

In those circumstances, this first complaint of the fifth ground of appeal cannot succeed in my opinion.

189.

In the second place, the appellants allege that, in paragraphs 253 and 254 of the judgment under appeal, the General Court characterised as ‘material and serious indicia’‘vague and speculative’ statements, from which it inferred the existence of parallel conduct, and the fact that ‘none of the suppliers states that it considers it unlikely’ that information was exchanged. The lack of statements denying the likelihood of collusion cannot be a material and serious indication that collusion exists.

190.

I agree with the Commission that, by these arguments – which are, moreover, limited to challenging isolated passages of the judgment under appeal taken out of context –, the appellants seek in reality to question the General Court’s assessment of the evidence adduced before it, without establishing or indeed claiming the distortion of that evidence.

191.

Accordingly, it is my view that this second complaint of the fifth ground of appeal must be declared inadmissible. In their reply, the appellants state that, by this complaint, they seek to contest the General Court’s legal characterisation of the facts and not the assessment of those facts.

192.

In that regard, I would simply state that, in paragraphs 253 and 254 of the judgment under appeal, the General Court put forward an alternative line of reasoning, as is shown by the use of the word ‘nor’ at the beginning of paragraph 252 of that judgment.

193.

In paragraphs 248 to 251 of the judgment under appeal, after examining the information resulting from the interviews with the suppliers, as recorded in the minutes drawn up by the Commission, the General Court concluded that that information constituted sufficiently serious indicia of the existence of parallel conduct between two international distributors’ alliances, ICDC and AgeCore (of which Intermarché was a member), characterised by the concomitant nature and the convergence of their requests to suppliers for discounts.

194.

In paragraph 252 of the judgment under appeal, the General Court observed that the Commission ‘[had] not merely communicate[d] indicia relating to that first component of a concerted practice – parallel conduct on the market – which may, moreover, under certain conditions, give rise to a presumption that the second component of a concerted practice, collusion, is present’, but that it had also produced ‘indicia relating to the existence of such collusion, consisting in this instance in exchanges of information, which, when taken together, may also be considered to be sufficiently serious’. Paragraphs 253 and 254 of the judgment under appeal, which are criticised by the appellants, specifically concern, ad abundantiam, the assessment of the sufficiently serious nature of such indicia.

195.

Furthermore, in paragraphs 256 to 258 of that judgment, the General Court also stated that the suppliers’ statements relating to the exchanges between distributors about discounts were supported by ‘information that mentions the channels through which those exchanges may pass’, which comes from the statements of a number of suppliers and from the email from the director of association N.

196.

It follows that, even assuming that, by the second complaint of their fifth ground of appeal, the appellants seek to allege that the General Court made an error of legal characterisation, that complaint should be declared ineffective.

197.

On the basis of all the foregoing considerations, I am of the view that the fifth ground of appeal is in part unfounded and in part inadmissible or ineffective.

198.

It follows from my analysis of the third ground of appeal that the General Court erred in law in finding that the indicia resulting from the interviews with the suppliers were not to be rejected as vitiated by a formal irregularity on the ground of non-compliance with the requirement to record interviews laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.

199.

Turning to the consequences of such an error, it must be recalled that, in accordance with the Court’s settled case-law, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and a substitution of grounds must be made. ( 95 )

200.

I note that, as is apparent from paragraph 206 of the judgment under appeal, given that it had rejected the appellants’ arguments alleging non-compliance with the requirement to record the interviews with the suppliers, the General Court considered that there was no need to rule on the Commission’s assertion that the minutes of those interviews constitute recordings compatible with Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004.

201.

That assertion must therefore be examined. If it were to prove well founded, the contested section of the operative part of the General Court’s judgment could be upheld on the basis of grounds other than those vitiated by errors. ( 96 )

202.

The Commission argued before the General Court that it had complied with its requirement to record the statements of the 13 suppliers interviewed by drawing up and adding to the case file lengthy and detailed minutes that faithfully convey the content of those statements. In its view, detailed minutes that are included in the case file constitute one of the ‘forms’ of recordings, the choice of which is left to the Commission by Article 3(3) of Regulation No 773/2004, on the same basis as an audio or audio-visual recording or a verbatim transcription. It also argued that, even assuming that it failed to comply with its obligation to record the interviews, the statements of the 13 suppliers interviewed are, in any event, indicia.

203.

In this regard, I am of the view that, whilst it cannot be ruled out that detailed minutes drawn up by the Commission further to an interview conducted pursuant to Article 19 of Regulation No 1/2003 and added to the case file may satisfy the formal requirements under Article 3 of Regulation No 773/2004, that cannot be the case, in any event, where the person who made the statements has not received a copy of those minutes and was not, therefore, in a position to approve their content or correct his statements if necessary. Any other interpretation would be at odds with the very wording of Article 3(3) of Regulation No 773/2004, which provides that ‘a copy of any recording shall be made available to the person interviewed for approval’ and that, where necessary, the Commission is to set ‘a time limit within which the person interviewed may communicate to it any correction to be made to the statement’.

204.

Nor is it possible, in my view, to infer an alternative interpretation indirectly from paragraph 92 of the judgment in Intel, in which the Court considered whether the communication to the accused undertaking of an internal note from the Commission containing a brief summary of the content of the subjects addressed during the interview in question could be regarded as compensating for the lack of any formal recording of such exchanges. In that paragraph, first, the Court did not address the question whether that note could constitute a formal recording pursuant to Article 3(3) of Regulation No 773/2004, but simply whether the note could remedy the infringement of that article in conjunction with Article 19 of Regulation No 1/2003. Second, the Court merely observed that the note at issue did not contain any indication of the content of the discussions that had taken place during that interview or the nature of the information provided by the person interviewed and was therefore incapable, irrespective of any other factor, of providing the undertaking in question with the information needed for it to exercise its rights of defence. Moreover, it is apparent from paragraphs 95 and 96 of the judgment in Intel that the Commission had not relied on the note in question in order to prove the infringement and that the only question raised was whether the statements made during the interview at issue contained exculpatory evidence.

205.

Lastly, it is my view, in line with the comments I have already made in point 143 of this Opinion, that, where the provisions related to recordings are infringed, the information obtained by the Commission in the course of interviews that are not duly recorded cannot be used for the purpose of adopting an inspection decision.

206.

On the basis of all the foregoing considerations, I propose that the Court allow the appeal and annul paragraph 2 of the operative part of the judgment under appeal.

207.

For the reasons set out inter alia in points 144 to 163 and 202 to 205 of this Opinion, I consider that the complaint raised by the appellants before the General Court, alleging that the Commission failed to comply with the requirement to record interviews laid down in Article 19 of Regulation No 1/2003 and Article 3 of Regulation No 773/2004, is well founded and that the indicia resulting from the interviews with the suppliers must, for that reason, be rejected as vitiated by a formal irregularity.

208.

It is apparent from the case file that the information resulting from those interviews constituted the bulk of the indicia forming the basis of the decisions at issue, with the email from the director of the association N – the probative value of which is, in any case, limited by the fact that it contains only reported comments that do not convey any personal and direct knowledge of the commercial relationships concerned – and the annexes thereto merely supplementing that information.

209.

In those circumstances, it should, in my view, be concluded that, on the date of adoption of the decisions at issue, the Commission was not in possession of sufficiently serious indicia justifying the presumptions set out in Article 1(a) of the decisions at issue and that those decisions should be annulled in their entirety.

210.

On the basis of all the foregoing considerations, I suggest that the Court: