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 provisions of the Treaty grant undertakings the right to legally challenge decisions rendered by the Commission during the preliminary investigation. An undertaking whose legal situation might be changed by the effect of the decision, or requiring the provision of information, effectively has an interest in acting to preserve its rights. It has two avenues of recourse; it may either bring an a …

Appeal

Under Article 337 TFEU, the Commission may, for the performance of the tasks entrusted to it, collect any information and carry out any checks required. Thus, to ensure the application of Articles 101 and 102 TFEU, the Commission is empowered to carry out a preliminary investigation before initiating proceedings (Regulation No 1/2003 Articles 18, 19 and 20). The purpose of the investigation is to establish the existence or non-existence of a violation of the competition rules. The exercise of the powers given to the Commission contributes to the maintenance of the system of competition intended by the Treaty with which undertakings are absolutely bound to comply . Regulation No 17 conferred wide powers of investigation on the Commission to ensure effective supervision of infringements to the EU competition rules. It could request information from undertakings and carry out checks. Those powers were consolidated and supplemented by Regulation No 1/2003 (power to interview any persons who may be in possession of useful information, affix seals for the period of time necessary for the inspection, enter any premises where business records may be kept etc.). The Commission is empowered throughout the Union to require such information to be supplied as is necessary to detect any agreement, decision or concerted practice prohibited by Article 101 and 102 TFEU .

See Case 46/87 Hoechst v Commission [1989] ECR 2859, LawLex200500005405JBJ.

See Regulation No 1/2003, at pts 23 and 24.

General power of investigation

In application of the discretionary powers principle, the Commission alone can decide to initiate an investigation and may freely choose the investigative measure to be taken. It can conduct inquiries by sector of the economy (Article 17 of Regulation No 1/2003); this type of measure, which enables it to gather information before initiating proceedings of its own motion for suspected infringements, is only rarely used. It may send requests for information to the governments and competent authorities of the Member States and to undertakings and associations of undertakings (Article 18 of Regulation No 1/2003) and may conduct all necessary inspections of undertakings and associations of undertakings (Article 20). The Commission may, due to the autonomous nature of those measures, use them in the order that it wishes . It can resort to one and/or the other in the order it considers the best suited to the search for evidence of the alleged violation. Requests for information and inspections are independent investigative procedures. Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information to enable it better to define the scope of the infringement, to determine its duration or to identify the circle of undertakings involved . It may also initiate a new inquiry in order to verify or supplement information which it obtained during a previous investigation .

Case T-325/16 Ceské dráhy a.s., Judgment of 20 June 2018, LawLex201800001736JBJ.

Case 374/87 Orkem v Commission [1989] ECR 3283, LawLex200500004562JBJ.

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

Powers of investigation

The Commission has a real power in respect of the obtaining of information. The purpose of requests for information is not only to prove the existence of an infringement of Articles 101 and 102 but also to obtain information on practices that may be exonerated. The accuracy of the information that the Commission considers necessary to know implies the previous cooperation of the undertakings and associations of undertakings, without which the information could not be obtained .

It may also, through the exchanges of information under Article 12 of Regulation No 1/2003, be sent any element of fact or law collected for the application of Articles 101 or 102 TFEU by the authorities of the Member States and use them as evidence. Such information may only be used in evidence to impose sanctions on natural persons where: (i) the law of the transmitting authority foresees sanctions of a similar kind in relation to an infringement of Article 101 or Article 102 TFEU or, if that is not the case, (ii), the information has been collected in a way which respects the same level of protection of the rights of defense of natural persons as provided for under the national rules of the receiving authority. However, in such a case, the information exchanged cannot be used by the receiving authority to impose custodial sentences.

Case 136/79 National Panasonic v Commission [1980] ECR 2033, LawLex200500004051JBJ.

Power to obtain information

The power to take statements laid down in Article 19 of Regulation No 1/2003 confers a new power of investigation on the Commission compared to Regulation No 17. Even in its recitals, Regulation No 1/2003 highlights the importance for the Commission to be able to interview any persons who may be in possession of useful information and record the statements made. Consequently, 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. Where an interview is conducted in the premises of an undertaking, the Commission must inform the competition authority of the Member State in whose territory the interview takes place and, if so requested by the competition authority of that Member State, its officials may assist the officials and other accompanying persons authorized by the Commission to conduct the interview .

Under Article 3 of Regulation No 773/2004, “[t]he Commission may record in any form the statements made by the persons questioned”. In order to guarantee the rights of defense of the undertaking whose employees are being interviewed, the EU law courts have transformed this simple option into an obligation , which is binding at all stages of the procedure , as long as the interviews are intended to gather information relating to the subject of the investigation . To meet the requirements of Article 19, the recording must not be drawn up many years after the meeting, but immediately or shortly thereafter, and must be sufficiently complete, precise and detailed as to the exact content of the discussions and the nature of the information provided by the participants . The Commission is also required to make a copy of any recording available to the interviewee for approval, on pain of not being able to avail itself of the recording in question , to place it in the file , and to inform the undertakings involved . However, the Court of Justice specified that, while the failure to record interviews, which cannot be compensated for by the production of notes that are too summary, constitutes a procedural irregularity, it can only be punished if the undertaking complaining of it demonstrates that, in its absence, it would have been better able to defend itself . Similarly, it considers that the Commission's failure to record interviews with the applicant itself does not affect the rights of the defense, since the applicant is necessarily aware of their content and, in order to leave a written record of any potentially exculpatory elements raised, it was incumbent on it to send the applicant a summary of these exchanges .

CJEU, 6 September 2017, Intel Corporation Inc, Case C-413/14 P, LawLex201700001368JBJ, holding that the Commission is required to record any interview carried out within the scope of its inspection powers, without distinguishing between whether it considers them to be formal or informal.

CJUE, 9 March 2023, Les Mousquetaires SAS, Case +, LawLex202400005919JBJ; Casino, Case C-690/20 P, LawLex202400005920JBJ and Intermarché Casino Achats SARL, Case C-693/20 P, LawLex202400005921JBJ, emphasizing that the obligation to record interviews conducted by the Commission applies whether these interviews took place before the formal opening of an investigation, in order to gather evidence of an infringement, or after it, to gather evidence of an infringement.

TUE, 14 September 2022, Google LLC, Case T-604/18, LawLex202200006913JBJ, 9 March 2023, les mousquetaires sas, Case c-682/20 p, LawLex202400005919JBJ; Casino, Case c-690/20 p, LawLex202400005920JBJ and intermarché casino achats sarl, Case c-693/20 p, LawLex202400005921JBJ, cited above.

TUE, 14 September 2022, Google LLC, Case T-604/18, LawLex202200006913JBJ, cited above, and on the completeness of registrations, TUE, 15 June 2022, Qualcomm Inc, Case T-235/18, LawLex202200003129JBJ.

CJEU, 9 March 2023, Les Mousquetaires SAS, Case C-682/20 P, LawLex202300003274JBJ; Casino, Case C-690/20 P, LawLex202300003269JBJ and Intermarché Casino Achats SARL, Case C-693/20 P, LawLex202300003261JBJ, cited above.

TUE, 15 June 2022, Qualcomm Inc, Case T-235/18, LawLex202200003129JBJ, cited above; 25 October 2023, Bulgarian Energy Holding EAD, Case T-136/19, LawLex202300012748JBJ, holding that interviews conducted by the Commission with the plaintiff in order to gather information on the subject of the investigation must be recorded and may not be omitted from the investigation file on its own initiative.

Case T-671/19 Qualcomm, Inc., Judgment of 18 September 2024, LawLex202400006537JBJ.

Interviews

The provisions of the Treaty grant undertakings the right to legally challenge decisions rendered by the Commission during the preliminary investigation. An undertaking whose legal situation might be changed by the effect of the decision, or requiring the provision of information, effectively has an interest in acting to preserve its rights. It has two avenues of recourse; it may either bring an action for annulment or apply for interim measures to have enforcement of the decision suspended. Such appeals are strictly regulated and may not be exercised in all cases where the undertaking disagrees with the Commission decision.

European Competition Law

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