Competition investigation – European law | 500 Questions - Business Law (Chapter 1.2.1) • Livv

149. What is the purpose of the investigation?

The Commission may, for the accomplishment of the tasks entrusted to it, collect all necessary information and carry out all necessary verifications (Art. 337 TFEU). Thus, to monitor compliance with Articles 101 and 102 TFEU, the Commission is …

150. Is the power to request an investigation limited?

In application of the principle of prosecutorial discretion, the Commission alone decides to initiate an investigation. Furthermore, it has the free choice of the investigative measure. The Commission may conduct investigations by economic sector …

151. Under what conditions can the Commission conduct a sector inquiry?

The Commission may conduct an investigation in a particular sector of the economy or regarding a type of agreements in different sectors when the development of trade between Member States, price rigidity, or other circumstances suggest that …

152. Through which channels can the Commission gather information?

The Commission is vested with a genuine power of information. Indeed, in addition to the possibility of gathering information during the investigation, the Commission can, through the exchange of information provided for in Article 12 of Regulation …

153. Can the Commission conduct hearings during the investigation?

The power to take statements is set out in Article 19 of Regulation No 1/2003, the recitals of which emphasize the importance for the Commission to be able to question any person likely to have relevant information and to record their statements. …

154. Can the undertaking be assisted by counsel in the event of an inspection?

The undertaking may consult a lawyer, but the absence of the lawyer is not likely to invalidate the inspection (Revised Explanatory Note of the Commission of 11 September 2015). Inspectors may begin the inspection without waiting for the lawyer to …

155. Can the Commission use either a simple or formal request for information indiscriminately?

Article 18 of Regulation No 1/2003, without establishing a hierarchy between requests, specifies only that “[i]n order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require …

156. To whom should the request for information be addressed?

The request for information is sent to the undertaking or association of undertakings concerned. Article 18(4) of Regulation No 1/2003 specifies that “The owners of the undertakings or their representatives and, in the case of legal persons, …

157. In what manner and form should a simple request for information be addressed?

The simple request is addressed to the undertaking by registered letter with acknowledgment of receipt signed by an authorized official of the Commission. The Commission must simultaneously send a copy of this request to the competent authority of …

158. In what manner and form must a formal request for information be addressed?

Like any decision of the Commission, the request for information by way of decision must be notified to its recipient and takes effect only from the time of this notification. Simultaneously with the notification, a copy of the request must be sent …

159. Must the formal request for information be justified?

The formal request for information must, like any decision of the Commission, be reasoned (TFEU, Art. 296). It must therefore indicate the purpose of the investigation. This obligation constitutes a fundamental requirement . The decision must …

160. What is meant by 'necessary information'?

The request for information must only concern necessary information . It is up to the Commission to decide whether information is necessary to detect the existence of an infringement of competition rules . The request for information must …

161. Can the Commission require that responses be in a specific format?

The Commission's requests for information must not represent a disproportionate burden for the undertaking. This principle does not, however, prevent the Commission from requesting a certain format of the information requested. It may thus address …

162. Who must provide the requested information?

The obligation to provide the information requested by the Commission rests on the owners of the undertakings concerned or their representatives and, in the case of legal entities, companies, or associations without legal personality, the persons …

163. Are undertakings required to cooperate?

The undertaking is subject to the obligation to respond as soon as the simple request for information is sent. The following are characterized as refusals to cooperate: a passive reaction; provision of only part of the information requested; …

164. What is inaccurate information?

The undertaking's obligation to provide accurate and undistorted information is inferred from Article 18 of Regulation No 1/2003, which requires the Commission to specify in its request for information the penalties incurred in the event of …

165. What are the penalties for providing incomplete or inaccurate information?

In the case of a simple request, only the inaccuracy of the information exposes the undertaking to a financial penalty, whereas the refusal to respond is sufficient to sanction the undertaking questioned by way of decision. The undertaking …

166. What remedies are available to undertakings against a request for information?

The provisions of the Treaty grant undertakings the right to challenge in court the decisions made by the Commission during the preliminary investigation. The undertaking, whose legal situation may be altered by the effect of the inspection …

167. What are the admissibility conditions for an action for annulment?

Any natural or legal person may, pursuant to Article 263 TFEU, bring an action for annulment against decisions of which they are the addressee or which concern them directly and individually. The admissibility of the appeal depends on the …

168. To what extent can an undertaking obtain a stay of enforcement of a Commission's decision?

Article 278 TFEU grants the European court the ability to order the suspension of the enforcement of the contested act. The suspension of enforcement may be granted if it is established that its granting is prima facie justified in fact and in law …

169. Can the Commission conduct extensive investigations?

Article 20 of Regulation No 1/2003 authorizes the Commission to “carry out all necessary inspections of undertakings and associations of undertakings.” The regulation thus covers both simple and extensive investigations according to the types of …

170. Can the Commission choose between the different types of inspection?

The Commission may freely choose to proceed by mandate and/or by decision, based solely on the needs of the investigation and the specifics of the case . The European authority is not required to conduct an inspection by simple mandate before …

171. What is the procedure for conducting an inspection by authorization?

The inspection may be conducted by simple mandate (Regulation No 1/2003, Article 20(3). The mandate must be in writing and specify the subject and purpose of the inspection as well as the penalties provided in case of non-cooperation by the …

172. What are the obligations of the undertaking subject to an inspection by mandate?

The undertaking is not required to submit to an inspection conducted by means of a judicial warrant. However, if it agrees to such an inspection, it must provide complete information, as well as accurate and truthful answers, under penalty of …

173. In which cases can the Commission conduct an inspection by decision?

The Commission may adopt an inspection decision as soon as it has serious material evidence and indicia leading it to suspect the existence of an infringement . Such evidence may come from documents collected during a previous investigation …

174. What is the content of the inspection decision?

The inspection decision must indicate the subject and purpose of the inspection, that is, the suspected infringements the Commission intends to verify, set the date on which it begins, and mention the penalties incurred in case of non-cooperation …

175. Under what circumstances can the Commission be accused of conducting a fishing expedition?

The position of the European courts regarding fishing expeditions has evolved over time. According to the General Court, if the Commission were limited to requesting the production of documents that it could precisely identify in advance, its …

176. Must the undertaking comply with the inspection decision?

The undertakings concerned by the inspection are obliged to submit to the investigation operations, and their behavior must not compromise the execution of the inspection. When a reasoned inspection decision has been properly notified to a …

177. Is it necessary for the Commission's agents to be assisted by national authorities during inspections?

The competent authority of the Member State in whose territory the inspection will be carried out is either notified in advance, in the case of an inspection by warrant, or heard, if the Commission adopts a formal decision. In return, the agents of …

178. What are the powers of the national court before which the Commission has filed a request for a judicial authorization?

The national court verifies the authenticity of the Commission's decision and the proportionality of the coercive measures requested in relation to the purpose of the inspection (Regulation No 1/2003, Art. 20(8)). The court may: verify whether …

179. What are the investigative powers of the Commission's agents?

Authorized agents have significant investigative powers. They are authorized by Article 20(2) to: enter ball premises, land, and means of transport of undertakings and associations of undertakings; examine the books and other records related to …

180. What documents are accessible to investigators?

In its revised explanatory note of March 2024, the Commission states that inspectors are authorized to conduct inspections, and consequently to make copies of documents or extracts of documents regardless of the medium on which they are stored . …

181. What premises can investigators access?

Article 20 of Regulation No 1/2003 authorizes the Commission's agents to access all premises, land, and means of transport of undertakings and associations of undertakings. Article 21 also allows for the search for evidence in any other premises …

182. Can undertakings prohibit access to their premises?

In practice, access to premises only becomes a source of conflict when the undertaking opposes the inspection. In this case, the Commission's agents can indeed seek the necessary information without the undertakings' cooperation, with the …

183. What rights do persons interviewed during an inspection have?

The request for oral explanations cannot be equated with a request for information. Therefore, the report drawn up by the officials mandated by the Commission, detailing the oral statements made by the undertaking that voluntarily submitted to an …

184. What penalties do undertakings face for obstructing an inspection?

Undertakings are subject to a fine of up to 1% of total turnover achieved during the preceding business year where, intentionally or negligently: they fail to comply with their inspection obligations (Regulation No 1/2003, Art. 23). Undertakings …

185. What remedies does the undertaking have against enforcement measures imposed during the inspection?

Pursuant to Article 263 TFEU, an action for annulment may be brought by any natural or legal person against decisions addressed to them or which concern them directly and individually. The admissibility of the appeal depends on the challengeable …

186. Can undertakings request a stay of enforcement of inspection measures?

A request for a stay of enforcement is admissible only if the applicant has challenged the act in question before the General Court of the European Union. Article 278 TFEU sets several conditions that must be cumulatively met to obtain the stay of …

187. Do undertakings benefit from the rights of defense at the inspection stage?

In proceedings for the application of competition rules, the rights of the defense may, in principle, be invoked only after the Statement of Objections has been communicated, in accordance with the provisions of Regulation No 773/2004. However, …

188. What are the sources of the rights of defense in the context of the investigation?

The rules of judicial law do not apply in matters of competition, and the texts governing the procedure for applying competition rules are almost silent on the rights of undertakings during the preliminary investigation. To interpret the …

189. Does the undertaking have the right to be heard during the investigation?

The right of the undertaking to effectively present its point of view is a fundamental principle of European law. Thus, the Commission must, pursuant to Article 27, para. 1, of Regulation No 1/2003, hear the party concerned before making a decision …

190. Are investigators subject to a duty of loyalty?

The Commission is subject to a duty of loyalty in the search for evidence. It must inform the undertaking concerned of the purpose of the investigation, notably by clearly indicating the presumptions it intends to verify, so that the persons …

191. Can the undertaking be compelled to testify against itself?

The burden of proving an infringement of Articles 101 and 102 TFEU lies with the Commission or the authority alleging it (Article 2 of Regulation No 1/2003). The search for such proof is, moreover, the very purpose of the preliminary investigation …

192. Can undertakings rely on the principle of proportionality?

Protection against arbitrary or disproportionate interference by public authorities constitutes a general principle of European law. The intervention of public authority in the private sphere of any person, natural or legal, must have a legal basis …

193. Can the undertaking invoke the right to inviolability of the home to oppose an inspection?

To enforce the right of access to their premises by investigators, undertakings have attempted to invoke this fundamental right of defense. However, the Court of Justice refused to extend the principle of the inviolability of the home to commercial …

194. May the undertaking invoke professional secrecy to oppose the seizure of documents?

Professional secrecy is expressly protected by Article 28 of Regulation No 1/2003. It prohibits: the use of information covered by professional secrecy for a purpose other than that for which it was requested; the communication of information that …

195. Can correspondence between a lawyer and their client be seized?

Certain information is confidential due to its source, such as correspondence between the lawyer and their client . This protection is based on the fundamental right of every litigant to have the possibility to freely address their lawyer. Since …

196. Can the undertaking request that documents covered by trade secrets be excluded from the proceedings?

Trade secrets cover, among other things, commercial, competitive, financial, or accounting information that is not normally accessible to third parties to the undertaking and which, from the point of view of their age, do not have a historical …

197. Is the Commission required to respect privacy during its inspections?

For several years, the respect for the privacy of company personnel has been invoked by companies to oppose requests for information or to oppose the seizure of mailboxes. The EU courts allow such requests to be submitted by the undertaking on …

198. Can the Commission transmit information to national authorities?

According to Article 12 of Regulation No 1/2003, the Commission and the competition authorities of the Member States may communicate and use as evidence any matter of fact or law, including confidential information, provided that such information …

199. Can the documents submitted by the Commission be used in the context of national proceedings?

An exception to the exclusive use of information by the Commission for the application of Articles 101 and 102 is provided: when national competition law is applied in the same case and in parallel with European competition law, if this …

200. Can the Commission disclose documents covered by business secrecy?

When the Commission wishes to communicate a document to national authorities, the confidentiality of which is claimed, it must assess whether it indeed contains business secrets and, after obtaining the undertaking's observations, make a reasoned …

201. Can the Commission transmit information to national courts seized of a civil action?

Pursuant to Article 15 of Regulation No 1/2003, the courts of the Member States may, in proceedings for the application of Articles 101 or 102 TFEU, request the Commission to provide them with information in its possession. The development of …

202. Can a national authority transmit information collected during an investigation to a national court?

The request for disclosure may also be submitted to a national authority. When faced with preliminary questions regarding the conditions under which a national authority may refuse access to documents obtained in the context of a leniency …

203. Can information obtained during a competition procedure only be used in that specific context?

In a series of instruments dated 5 August 2015, the Commission specified that information obtained pursuant to Regulation No 773/2004 of 7 April 2004 will be used exclusively for the purposes of judicial or administrative proceedings concerning the …