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

The protection against arbitrary or disproportionate intervention by the public authorities is a general principle of EU law. Any intervention by the public authorities in the private sphere of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law . In the context of a preliminary investigation, observance of that principle prevents the Comm …

Principle of proportionality

The protection against arbitrary or disproportionate intervention by the public authorities is a general principle of EU law. Any intervention by the public authorities in the private sphere of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law . In the context of a preliminary investigation, observance of that principle prevents the Commission from making demands which are disproportionate to what is required to efficiently carry out its duties.

Observance of the principle of proportionality involves the obligation for the Commission to state the reasons for its decisions. It must indicate the subject-matter and purpose of the preliminary investigation. The obligation to state reasons is a fundamental requirement insofar as the Commission's decision gives rise to obligations on the part of undertakings (cooperation; requirement to submit to investigations) and they must be able to assess the scope of those obligations. The statement of reasons must enable undertakings to assess the scope of their duties while safeguarding their rights . The Commission must therefore clearly indicate the presumed infringement it intends to investigate. In other words, the undertaking must know what it is accused of in order to be able to answer completely and accurately to it . Furthermore, the obligation to state reasons imposes on the Commission the requirement to only demand disclosure of such information as may enable it to investigate putative infringements which justify investigation and must be set out in the request . There must be a correlation between the information requested by the Commission and the putative infringement. Furthermore, the undertaking cannot, pursuant to its duty of active cooperation, be compelled to collect information from third parties. Such a burden would be disproportionate.

By contrast, at this stage in the proceedings, the Commission is not required to disclose to the undertaking all the information at its disposal on the presumed infringement . Therefore, the undertaking cannot ask for access to the file, since that right is granted to it only during the administrative procedure. It cannot claim that the Commission acted disproportionately and excessively where the Commission's conduct is justified due to the breach by the undertaking of its obligation to actively cooperate in the investigation . Likewise, an undertaking may not claim - in order not to have to provide the information requested by the Commission - that there has been an infringement of the principle of proportionality due to the risk of the circulation of the information in question between the various administrative departments of a Member State that could use the claimed documents in a way that may affect its commercial interests . An undertaking also cannot oppose an inspection by relying on the fact that the Commission already has sufficient indicia of the existence of an infringement , nor can it demand that the Commssion justify the need for additonal inspections by virtue of the existence of particularly serious grounds .

The principle of proportionality obliges the Commission to resort to the least onerous measure when there is a choice between several appropriate measures, and the disadvantages caused must not be disproportionate to the aims pursued . This obligation is not dependent on the choice between an inspection ordered by an authorization and an inspection ordered by decision since it does not depend on the specific seriousness of the situation or the extreme urgency or need for absolute discretion, but on the needs for an appropriate investigation .

See Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ; Case 97/87 Dow Chemical Ibérica and others v Commission [1989] ECR 3165, LawLex200500004570JBJ; Case 85/87 Dow Benelux NV v Commission, [1989] ECR 3137, LawLex200500004565JBJ.

Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ; see also Case 97/87 Dow Chemical Ibérica and others v Commission [1989] ECR 3165, LawLex200500004570JBJ; Case 85/87 Dow Benelux NV v Commission, [1989] ECR 3137, LawLex200500004565JBJ.

Case T-266/03 CB v Commission [2007] ECR II-83, LawLex200700001130JBJ; Case T-289/11 Deutsche Bahn AG, Judgment of 6 September 2013, LawLex201500000569JBJ.

An incomplete or inaccurate answer is likely to result for the undertaking in a fine or a periodic penalty payment.

Case T-39/90 SEP v Commission [1991] ECR II-1497, LawLex200500004655JBJ.

Case T-46/92 Scottish Football v Commission [1994] ECR II-1039, LawLex200500004002JBJ: in this case the company could not claim that the Commission exceeded its powers disproportionately when it threatened it by way of decision with periodic penalties, where it had tacitly refused to answer to the request for information in breach of its obligation to actively cooperate.

Case T-340/04 France Télécom  v Commission [2007] ECR p. II-573 LawLex200900000051JBJ.

Case T-289/11 Deutsche Bahn and others, Judgment of 6 September 2013, not available in English.

Case C-331/88 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte FEDESA and others [1990] ECR I-4023.

European Competition Law

227. Principle of proportionality

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227. Principle of proportionality

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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