European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

Authorized officials have wide powers of investigation which were reinforced notably by Regulation No 1/2003. Under Article 20(2) of the regulation, officials are authorized to:
- enter any premises, land and means of transport of undertakings and associations of undertakings ;
- examine the books and other business records, irrespective of the medium on which they are stored;
- take or obtain in  …

Investigative powers

Authorized officials have wide powers of investigation which were reinforced notably by Regulation No 1/2003. Under Article 20(2) of the regulation, officials are authorized to:

- enter any premises, land and means of transport of undertakings and associations of undertakings ;

- examine the books and other business records, irrespective of the medium on which they are stored;

- take or obtain in any form copies of or extracts from such books or records; the Commission determines the business documents which must be produced and of which it intends to take copies ; it must be able to obtain the information necessary to carry out the inspection without having to identify precisely the necessary documents in advance ; at the same time limiting the investigations to the activities referred to in the inspection decision and refraining from using documents it has consulted which do not fall in that category ; it may take copies of documents without having examined them beforehand provided that it undertakes to include in the file only those which, following a subsequent examination process, prove to be relevant to the subject matter of the investigation and to erase the others ; although the Commission may make copy-images of the hard drives of computers of staff of the inspected undertaking in order to search for material relevant to the investigation, it may only print out such materials and must then wipe the copy-images in the presence of representatives of the undertaking ; as there is no provision requiring  companies' books or business documents to be inspected at the firm's premises, the inspection may be carried out at the Commission's headquarters, where the seals affixed are opened in the presence of the representatives of the undertaking ; the fact that the documents seized concern a party exterior to the inspection measure does not call into question the legality of the operations insofar as they come within the scope of application of the investigation ; the fact that the data to which access is requested is stored outside the Union does not allow a foreign undertaking that has chosen to carry out commercial activities in the Union to evade the Commission's request ; undertakings or their staff and managers must - if applicable - imperatively make a request for protection of documents relating to private life prior to their seizure ; the undertakings can at any time ask the Commission to return the business documents or copies that are not related to the subject-matter of the inspection ; Commission inspectors cannot be challenged for not restricting themselves to demanding the production of documents clearly and obviously related to the subject-matter of the investigation, in the absence of evidence that they have conducted searches outside of that remit ;

- seal any business premises and books or records for the period and to the extent necessary for the inspection ;

- ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and record the answers ; this request for oral explanations is not the same as a request for information within the meaning of Article 18; therefore, minutes drawn up by the Commission's authorized officials and summarizing the oral statements made by representatives of an undertaking voluntarily submitting to an investigation cannot give rise to an action for annulment .

On 11 September 2015 the Commission published a revised explanatory note to authorizations to conduct inspections in execution of a Commission decision under Article 20(4) of Regulation No 1/2003 which sets out the rights and obligations of undertakings under inspection . The undertaking may consult a legal adviser during the inspection but the presence of a lawyer is not a legal condition for the validity of the inspection. Inspectors do not have to wait for the arrival of the lawyer to commence the inspection  but they will accept a short delay to give the undertaking time to consult with their legal advisor. Where any representative or member of staff of the undertaking gives oral explanations on the spot at the request of the inspectors, they must be recorded in any form and a copy of any such recording will be made available to the undertaking after the inspection. The Commission is required to record all interviews carried out in the context of its powers of investigation without distinguishing between what it may consider to be formal or informal interviews . In cases where a member of staff is not authorized by the undertaking to provide explanations on its behalf, the Commission sets a time-limit within which the undertaking may communicate to the Commission any rectification or amendment or to the explanations given by that person. The inspectors are entitled to carry out searches and seizures and take copies of or extracts from documents, irrespective of the medium on which they are stored. They can search the IT environment and storage media (laptops, desktops, tablets, mobile phones, CD-ROM, DVD, USB-key and so on) of the undertaking. The undertaking has the obligation to cooperate fully and actively with the inspection, notably by temporarily blocking of individual email accounts, disconnecting running computers from the network, removing and re-installing hard drives from computers etc. The undertaking must not interfere in any way with these measures and it must inform the employees affected accordingly. The undertaking receives a copy, in electronic or paper format, of all the documents and the data seized, which is covered by professional secrecy where required. Seals that have been affixed must not be broken.

For examples of application, see Commission Decision No 94/735/EC of 14 October 1994, Akzo Chemicals BV, LawLex200500004792JBJ: offices which are located in a different place compared to the head office are regarded as premises of the undertaking; Case T-65/99 Strintzis Lines Shipping v Commission [2003] ECR II-5433, LawLex200500004869JBJ: Where the premises of the undertaking that was visited had been used by the undertaking to which the investigation decision was addressed to develop its business and that the two undertakings constituted one and the same economic unit, the inspection may take place in the premises belonging to that undertaking.

Case 155/79 AM & S v Commission [1982] ECR 1616, LawLex200500004095JBJ; Commission Decision No 92/500/EEC of 7 October 1992, CSM - Sugar, LawLex200500004816JBJ.

Commission Decision No 92/500/EEC of 7 October 1992, CSM - Sugar, LawLex200500004816JBJ.

Case T-289/11 Deutsche Bahn and others v Commission, Judgment of 6 September 2013, LawLex201500000569JBJ.

Commission Decision No 39/326 of 30 January 2008, E.ON Energie AG, LawLex201000000496JBJ, nature of seals affixed to a conference room for the inspection team where the documents which were pre-sorted, but not yet copied and catalogued, were kept; Case T-141/08 E.ON Energie AG, Judgment of 15 December 2010, LawLex201400000150JBJ: where the Commission brings direct evidence of a breach of seals, the undertkaings must, to reverse the burden of proof, show that that evidence is insufficient.

See in particular Case 136/79 National Panasonic v Commission [1980] ECR 2033, LawLex200500004051JBJ, on the possibility for the Commission's officials to request information on specific questions arising from the books and business records which they examine; Case T-9/97 Elf Atochem v Commission [1997] ECR II-909, LawLex200200003754JBJ, on the authorized officials' power to ask for oral explanations.

Case T-9/97 Elf Atochem v Commission [1997] ECR II-909, LawLex200200003754JBJ.

PIAZZA, The Revision of the Commission Explanatory Note on European Commission Surprise Inspections, JECLAP, 2013, Vol. 4, No 5, 421.

Case T-357/06 Koninklijke Wegenbouw Stevin BV, Judgment of 27 September 2012, LawLex201700001055JBJ: the exercise of the right to legal assistance must not impair the proper conduct of the investigation and the persons charged with carrying out the investigation must be able to enter all the undertaking's premises immediately, to notify it of the inspection decision and to occupy the offices of their choice, without waiting until the undertaking has consulted its lawyer.

Case C-413/14 P Intel Corporation, Judgment of 6 September 2017, LawLex201700001368JBJ.

Case 85/87 Dow Benelux NV v Commission, [1989] ECR 3137, LawLex200500004565JBJ.

Case T-135/09 Nexans France SAS, Judgment of 14 November 2012,  LawLex201200002316JBJ and Case T-140/09 Prysmian SpA, Judgment of 14 November 2012 not available in English.

Case T-449/14 Nexans France SAS, Judgement of 12 July 2018, LawLex201800001088JBJ, upheld by C-606/18 P Nexans France SAS, Judgment of 16 July 2020, LawLex202000001748JBJ; see also C-601/18 P Prysmian SpA, Judgment of 24 September 2020, LawLex202000002154JBJ.

Case T-475/14  Prysmian SpA, Judgment of 12 July 2018, LawLex201800001061JBJ.

Case T-475/14  Prysmian SpA, cited above; Case T-449/14 Nexans France SAS, Judgment of 12 July 2018, LawLex201800001088JBJ, upheld in Case  C-606/18 P 16 Nexans France SA, Judgment of 16 July 2020, LawLex202000001748JBJ, which specifies that if the continuation of the inspection carried out by the Commission on its own premises is likely to give rise to additional costs for the undertaking inspected, those costs must be reimbursed by the authority. In the same vein, see Case C-601/18 P Prysmian SpA, Judgment of 24 September 2020, LawLex202000002154JBJ, cited above.

Case T-489/09 Leali SpA, Judgment of 9 December 2014, not available in English.

Case T-284/24 R Nuctech Warsaw Company Limited sp. z o.o., Judgment of 12 August 2024, LawLex202400005891JBJ, rendered in the context of anti-subsidy proceedings, but whose solution is declared transposable to competition investigations by the judge himself.

Case T-255/17 Les Mousquetaires et ITM Entreprise, Judgment of 5 October 2020, not available in English.

European Competition Law

217. Investigative powers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

217. Investigative powers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise