Keywords
Summary

Keywords

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1.Community law - Principles - Rights of the defence - Observance thereof in the context of administrative proceedings

( Regulation No 17 of the Council, Art . 14 )

2.Community law - Principles - Fundamental rights - Right of natural persons to the inviolability of their homes - Not applicable to undertakings - Protection against arbitrary or disproportionate intervention by the public authorities

( Regulation No 17 of the Council, Art . 14 )

3.Competition - Administrative procedure - Commission' s powers of investigation - Scope - Access to undertakings' premises - Limits - Specification of the subject-matter and purpose of the investigation

( Regulation No 17 of the Council, Art . 14 )

4.Competition - Administrative procedure - Commission' s powers of investigation - Limits - Situations requiring the assistance of the national authorities

( Regulation No 17 of the Council, Art . 14 )

5.Competition - Administrative procedure - Commission' s powers of investigation - Assistance of the national authorities - Procedural rules laid down by national law - Review by national courts - Limits

( Regulation No 17 of the Council, Art . 14(6 ) )

6.Measures adopted by the institutions - Statement of reasons - Obligation - Scope - Decision ordering an investigation under Article 14(3 ) of Regulation No 17

( Regulation No 17 of the Council, Art . 14(3 ) )

7.Competition - Administrative procedure - Decision ordering an investigation - Adoption on the basis of delegated powers - Legality - Consequences - Imposition of fines for non-compliance

( Merger Treaty, Art . 17; Regulation No 17 of the Council, Arts 14(3 ) and 15 )

8.Competition - Administrative procedure - Decision imposing a periodic penalty payment on an undertaking - Hearing of the undertaking concerned and consultation of the Advisory Committee - Must take place before the definitive amount of the periodic penalty payment is fixed

( Regulation No 17 of the Council, Art . 15 )

9.Measures adopted by the institutions - Presumption of validity - Consequences

Summary

1.Respect for the rights of the defence constitutes a fundamental principle and must therefore be ensured not only in administrative procedures which may lead to the imposition of penalties but also during preliminary inquiry procedures such as investigations under Article 14 of Regulation No 17, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable .

2.Although the existence of a fundamental right to the inviolability of the home must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities . No other inference is to be drawn from Article 8 of the European Convention on Human Rights .

None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention . The need for such protection must be recognized as a general principle of Community law .

3.Both the purpose of Regulation No 17 and the list of powers conferred on the Commission' s officials by Article 14 thereof show that the scope of investigations may be very wide .

In that regard, the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings .

That right of access would serve no useful purpose if the Commission' s officials could do no more than ask for documents or files which they could identify precisely in advance . On the contrary, such a right implies the power to search for various items of information which are not already known or fully identified . Without such a power, it would be impossible for the Commission to obtain the information necessary to carry out the investigation if the undertakings concerned refused to cooperate or adopted an obstructive attitude .

However, the exercise of the wide powers of investigation conferred on the Commission is subject to conditions serving to ensure respect for the rights of undertakings . In that regard, the Commission' s obligation to specify the subject-matter and purpose of the investigation is a fundamental requirement not merely in order to show that the investigation to be carried out on the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate while at the same time safeguarding the rights of the defence .

4.Where investigations are carried out with the cooperation of the undertakings concerned by virtue of an obligation arising under a decision ordering an investigation, the Commission' s officials have, inter alia, the power to have shown to them the documents they request, to enter such premises as they choose, and to have shown to them the contents of any piece of furniture which they indicate . On the other hand, they may not obtain access to premises or furniture by force or oblige the staff of the undertaking to give them such access, or carry out searches without the permission of the management of the undertaking .

On the other hand, if the undertakings concerned oppose the Commission' s investigation, its officials may, on the basis of Article 14(6 ) of Regulation No 17 and without the cooperation of the undertakings, search for any information necessary for the investigation with the assistance of the national authorities, which are required to afford them the assistance necessary for the performance of their duties . Although such assistance is required only if the undertaking expresses its opposition, it may also be requested as a precautionary measure, in order to overcome any opposition on the part of the undertaking .

5.It follows from Article 14(6 ) of Regulation No 17 that it is for each Member State to determine the conditions under which the national authorities will afford assistance to the Commission' s officials . In that regard, the Member States are required to ensure that the Commission' s action is effective, while respecting the general principles of Community law . Within those limits, the appropriate procedural rules designed to ensure respect for undertakings' rights are those laid down by national law .

The Commission is required to respect the relevant procedural rules laid down by national law and must make sure that the competent body under national law has all that it needs to exercise its own supervisory powers .

That body, whether judicial or otherwise, cannot in this respect substitute its own assessment of the need for the investigations ordered for that of the Commission, the lawfulness of whose assessments of fact and law is subject only to review by the Court of Justice . On the other hand, it is within the powers of the national body, after satisfying itself that the decision ordering the investigation is authentic, to consider whether the measures of constraint envisaged are arbitrary or excessive having regard to the subject-matter of the investigation and to ensure that the rules of national law are complied with in the application of those measures .

6.Article 14(3 ) of Regulation No 17 itself lays down the essential constituents of the statement of the reasons upon which a decision is based . The Commission' s obligation to specify the subject-matter and purpose of the investigation constitutes a fundamental guarantee of the rights of the defence of the undertakings concerned . 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 . Although the Commission 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, it must none the less clearly indicate the presumed facts which it intends to investigate .

7.The decision empowering the Member of the Commission with responsibility for competition to adopt a decision under Article 14(3 ) of Regulation No 17 on behalf of and under the responsibility of the Commission does not infringe the principle of collegiate responsibility enshrined in Article 17 of the Merger Treaty . For that reason, the decisions adopted by virtue of such delegation must be regarded as decisions of the Commission within the meaning of Article 15 of Regulation No 17 and refusal to comply therewith may lead to the imposition of a fine .

8.It is not necessary to hear the undertaking concerned and consult the Advisory Committee on Restrictive Practices and Dominant Positions before adopting a decision imposing a periodic penalty payment, expressed in terms of a number of units of account per day of delay, calculated from a given date, on an undertaking which has refused to submit to an investigation . Since that decision does not determine the total amount of the periodic penalty payment, it is not an enforceable decision . The requirement to hear the undertaking and consult the Advisory Committee before the adoption of such a decision would entail delaying the date of adoption of that decision and, therefore, jeopardizing the effectiveness of the decision ordering the investigation .

On the other hand, that hearing is an essential part of the rights of the defence and the consultation must take place before the fixing of the definitive amount of the periodic penalty payment, so that both the undertaking concerned and the Advisory Committee are then in a proper position to express their views on all the matters on the basis of which the Commission has imposed the periodic penalty payment and fixed the definitive amount thereof .

9.All persons subject to Community law must acknowledge that measures adopted by the institutions are fully effective so long as they have not been declared invalid by the Court and to recognize their enforceability unless the Court has decided to suspend the operation of the said measures . The conduct of an undertaking which refuses to cooperate in any way in the implementation of a decision ordering an investigation under Article 14 of Regulation No 17 addressed to it is incompatible with that obligation and cannot be justified on the basis of superior legal interests with the result that there are no grounds for reducing the amount of the periodic penalty payment imposed on account of that refusal .