CJEC, June 26, 1980, No 136-79

THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

1. By application of 24 August 1979, National Panasonic (UK) limited, a company incorporated in the United Kingdom (hereinafter referred to as "National Panasonic"), requests, under Articles 173 and 174 of the EEC treaty, the annulment of the Commission decision of 22 June 1979 concerning an investigation to be made pursuant to Article 14 (3) of Regulation No 17-62 of the Council. By the same application, the applicant requests in addition that the Commission should be ordered to return to National Panasonic all documents copied by the Officials of the Commission during that investigation, to destroy the notes made at that time and to undertake not to make any further use of such documents or notes or information.

2. The applicant is a company formed under English law and a subsidiary of the Japanese Matsushita electric industrial company and the exclusive distributor in the United Kingdom of National Panasonic and technics electronic goods intended for sale to consumers. Another subsidiary of the Matsushita group is National Panasonic Vertriebsgesellschaft mbH, which is incorporated in the Federal Republic of Germany and distributes Panasonic products in that Member State.

3. On 11 January 1977 National Panasonic Vertriebsesellschaft mbH notified the Commission of an agreement relating to the distribution of National Panasonic products and requesting negative clearance or an exemption under Article 85 (3) of the treaty.

4. Although the notification did not indicate whether or not the agreement contained a prohibition on exports to another Member State, information obtained by the Commission showed that National Panasonic required its re-sellers not to re-export National Panasonic and technics products to other Member States.

5. On the basis of that information, the Commission considered that it was necessary to believe that the applicant had participated and was still participating in agreements and concerted practices contrary to Article 85 of the EEC treaty and therefore decided to carry out an investigation pursuant to Regulation No 17 of the Council and more particularly to Article 14 (3) thereof. For that purpose on 22 June 1979 it adopted the contested decision, Article 3 of which provided inter alia that it would be notified by being handed over personally immediately before the investigation was to begin to a representative of the undertaking by the Commission's Officials authorized for the purposes of the investigation.

6. The investigation in question was carried out on 27 June 1979 by two Officials authorized by the Commission who, accompanied by an Official of the office of fair trading, which is the competent authority in the United Kingdom and which must be heard under Article 14 (4) of Regulation No 17, arrived at National Panasonic's sales offices in slough, Berkshire, and, after notifying their decision by handing it over personally to the directors of the company, in fact carried out the investigation without awaiting the arrival of the company's solicitor. They left the company's offices on the same day with copies of several documents and notes made during the investigation.

7. The applicant contests the validity of that investigation, maintaining that the Commission decision ordering it is unlawful. It puts forward four submissions in support of its application, alleging that that decision is in breach of Article 14 of Regulation No 17 and of fundamental rights, that it failed to state reasons properly or at all for the decision and that it violates the doctrine of proportionality.

(a) The infringement of Article 14 of Regulation No 17

8. The applicant maintains first of all that the contested decision is unlawful because it does not comply with the spirit and letter of the provisions of Article 14 (3) of Regulation No 17 of the Council. To this end it maintains that on a proper construction those provisions provide for a two-stage procedure which permits the Commission to adopt a decision requiring an undertaking to submit to an investigation only after attempting to carry out that investigation on the basis of a written authorization to its own Officials. This interpretation is confirmed, according to the applicant, by Article 11 of the same Regulation which is similar in structure and provides for a two-stage procedure and by Article 13 (1) which makes a distinction between an investigation carried out by the Commission informally and that ordered by decision.

9. These arguments do not appear to be well-founded. In order to enable the Commission to accomplish its task of ensuring that the rules of competition in the common market are complied with, the eighth recital of the preamble to Regulation No 17 provides that it "must... be empowered, throughout the common market, to require such information to be supplied and to undertake such investigations as are necessary to bring to light any agreement, decision or concerted practice prohibited by Article 85 (1) or any abuse of a dominant position prohibited by Article 86". For this purpose, that Regulation provides for separate procedures, which shows that the exercise of the powers given to the Commission with regard to information and investigations is not subject to the same conditions.

10. Article 11 (2), (3) and (5), which concerns the Commission's power to request the information it considers necessary, provides as follows :

2. When sending a request for information to an undertaking or association of undertakings, the Commission shall at the same time forward a copy of the request to the competent authority of the Member State in whose territory the seat of the undertaking or association of undertakings is situated.

3. In its request the Commission shall state the legal basis and the purpose of the request and also the penalities provided for in Article 15 (1) (b) for supplying incorrect information.

5. Where an undertaking or association of undertakings does not supply the information requested within the time-limit fixed by the Commission, or supplies incomplete information, the Commission shall by decision require the information to be supplied. The decision shall specify what information is required, fix an appropriate time-limit within which it is to be supplied and indicate the penalties provided for in Article 15 (1) (b) and Article 16 (1) (c) and the right to have the decision reviewed by the Court of Justice".

It follows from those provisions that the Article in question in fact stipulates, for the exercise of that power, a two-stage procedure, the second stage of which, involving the adoption by the Commission of a decision which specifies what information is required, may only be initiated if the first stage, in which a request for information is sent to the undertakings or associations of undertakings, has been carried out without success.

11. On the other hand, Article 14 of the same Regulation on the "investigating" powers of the Commission is different in structure. Article 14 (2) and (3), which defines the conditions for the exercise of those powers, provides as follows :

2. " The Officials of the Commission authorized for the purpose of these investigations shall exercise their powers upon production of an authorization in writing specifying the subject-matter and purpose of the investigation and the penalties provided for in Article 15 (1) (c) in cases where production of the required books or other business records is incomplete. In good time before the investigation, the Commission shall inform the competent authority of the Member State in whose territory the same is to be made of the investigation and of the identity of the authorized Officials.

3. Undertakings and associations of undertakings shall submit to investigations ordered by a decision of the Commission. A decision shall specify the subject-matter and purpose of the investigation, apPoint the date on which it is to begin and indicate the penalities provided for in Article 15 (1) (c) and Article 16 (1) (d) and the right to have the decision reviewed by the Court of Justice ".

This provision does not of course prevent the Commission from carrying out an investigation solely pursuant to a written authorization given to its Officials without adopting a decision, but in other respects it contains nothing to indicate that it may only adopt a decision within the meaning of Article 14 (3) if it has previously attempted to carry out an investigation by mere authorization. Whereas Article 11 (5) expressly makes the adoption of a Commission decision subject to the condition that the latter has previously asked for the necessary information by means of a request addressed to those concerned and specifies in Article 11 (3) the essentials which such a request must contain, Article 14 makes the investigating procedure by means of a decision subject to no preliminary of this kind.

12. The applicant wrongly relies in support of its argument on the wording of Article 13 (1) of the same Regulation which provides that, at the request of the Commission, the national authorities must undertake the investigations which the Commission considers to be necessary under Article 14 (1) or which it has ordered by decision pursuant to Article 14 (3). By making a distinction between the two investigatory procedures, that provision clearly shows by the use of the word "or" that those two procedures do not necessarily overlap but constitute two alternative checks the choice of which depends upon the special features of each case.

13. The difference in the rules on this subject contained in Articles 11 and 14 is explained, moreover, by the diversity of the needs met by those two provisions. Whereas the information which the Commission considers necessary to know may not as a general rule be collected without the co-operation of the undertakings and associations of undertakings possessing this information, investigations, on the other hand, are not necessarily subject to the same condition. In general they aim at checking, by measures such as those listed in the second subParagraph of Article 14 (1) of Regulation No 17, the actual existence and scope of information which the Commission already has and do not therefore necessarily presuppose previous co-operation by undertakings or associations of undertakings in possession of the information necessary for the check.

14. The applicant maintains in another connexion that if it were necessary to interpret Article 14 differently from Article 11, that is, as meaning that it permits the Commission to adopt an investigation decision without previously carrying out an investigation such as that provided for in Article 14 (2) the Commission might, by having recourse to the procedure laid down in the same Article for requests for information, escape the conditions laid down in Article 11 and thus evade the guarantees given by the latter to the undertakings and associations of undertakings concerned.

15. Such arguments do not however take into account the distinction made by the Regulation itself between the "information" referred to in Article 11 and the "investigation" referred to in Article 14. The fact that the Officials authorized by the Commission, in carrying out an investigation, have the power to request during that investigation information on specific questions arising from the books and business records which they examine is not sufficient to conclude that an investigation is identical to a procedure intended only to obtain information within the meaning of Article 11 of the Regulation.

16. For all these reasons, it is necessary to dismiss the first submission as unfounded.

(b) The infringement of fundamental rights

17. The applicant then claims that by failing previously to communicate to it beforehand the decision ordering an investigation in question, the Commission has in this instance infringed fundamental rights of the applicant, in particular the right to receive advance notification of the intention to apply a decision regarding it, the right to be heard before a decision adversely affecting it is taken and the right to use the opportunity given to it under Article 185 of the treaty to request a stay of execution of such a decision. The applicant relies in particular on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 whereby "everyone" has the right to respect for his private and family life, his home and his correspondence. It considers that those guarantees must be provided mutatis mutandis also to legal persons.

18. As the Court stated in its judgment of 14 May 1974 in Case 4-73, J. Nold, Kohlen- und Baustoffgrosshandlung c/ Commission of the European Communities (1974) ECR 491 at p. 507, Fundamental Rights form an integral part of the general principles of law, the observance of which the Court of Justice ensures, in accordance with constitutional traditions common to the Member States and with international treaties on which the Member States have collaborated or of which they are signatories.

19. In this respect it is necessary to Point out that Article 8 (2) of the European Convention, in so far as it applies to legal persons, whilst stating the principle that public authorities should not interfere with the exercise of the rights referred to in Article 8 (1), acknowledges that such interference is permissible to the extent to which it "is in accordance with the law and is necessary in a Democratic Society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others".

20. In this instance, as follows from the seventh and eighth recitals of the preamble to Regulation No 17, the aim of the powers given to the Commission by Article 14 of that Regulation is to enable it to carry out its duty under the EEC treaty of ensuring that the rules on competition are applied in the common market. The function of these rules is, as follows from the fourth recital of the preamble to the treaty, Article 3 (f) and Articles 85 and 86, to prevent competition from being distorted to the detriment of the public interest, individual undertakings and consumers. The exercise of the powers given to the Commission by Regulation No 17 contributes to the maintenance of the system of competition intended by the treaty which undertakings are absolutely bound to comply with. In these circumstances, it does not therefore appear that Regulation No 17, by giving the Commission the powers to carry out investigations without previous notification, infringes the right invoked by the applicant.

21. Moreover, as regard more particularly the argument that the applicant was in this instance denied the right to be heard before a decision was taken regarding it, it is necessary to state that the exercise of such a right of defence is chiefly incorporated in legal or administrative procedures for the termination of an infringement or for a declaration that an agreement, decision or concerted practice is incompatible with Article 85, such as the procedures referred to by Regulation No 99-63-EEC of the Commission of 25 July 1963 (Official journal, English special edition 1963 to 1964, p. 47). On the other hand, the investigation procedure referred to in Article 14 of Regulation No 17 does not aim at terminating an infringement or declaring that an agreement, decision or concerted practice is incompatible with Article 85 ; its sole objective is to enable the Commission to gather the necessary information to check the actual existence and scope of a given factual and legal situation. Only if the Commission considers that the data for the appraisal thereof collected in this way justify the initiation of a procedure under Regulation No 99-63-EEC must the undertaking or association of undertakings concerned be heard before such a decision is taken, pursuant to Article 19 (1) of Regulation No 17 and to the provisions of Regulation No 99-63-EEC. Precisely this substantive difference between the decisions taken at the end of such a procedure and decisions ordering an investigation explains the wording of Article 19 (1) which, in listing the decisions which the Commission cannot take before giving those concerned the opportunity of exercising their right of defence, does not mention that laid down in Article 14 (3) of the same Regulation.

22. Finally, the argument that the absence of previous information deprived the applicant of the opportunity of exercising its right under Article 185 of the treaty to request the Court for a stay of execution of the decision in question is contradicted by the very provisions of Article 185. That Article presupposes in fact that a decision has been adopted and that it is effective whereas the previous notification, which the applicant complains that the Commission did not send it, should have preceded the adoption of the contested decision and could not have been binding.

23. In view of these considerations, the second submission is not well founded.

(c) Absence of a statement of the reasons upon which the decision was based

24. The applicant also maintains that the contested decision is irregular in that it failed to state or to state properly the reasons on which it was based, in particular because it in no way indicates the reasons why the Commission applied Article 14 (3) of Regulation No 17 in this instance without attempting first of all to carry out an informal investigation.

25. Article 14 (3) of Regulation No 17 itself lays down the essential constituents of the statement of the reasons upon which a decision ordering an investigation is based by providing that it "shall specify the subject-matter and the purpose of the investigation, apPoint the date on which it is to begin and indicate the penalties provided for in Article 15 (1) (c) and Article 16 (1) (d) and the right to have the decision reviewed by the Court of Justice".

26. It is an established fact that the preamble to the contested decision states the purpose, which is to check facts which might show the existence of an export ban contrary to the treaty, and indicates the penalties laid down in Articles 15 (1) (c) and 16 (1) (d) of Regulation No 17. It is also established that Articles 1 and 2 of that decision state the subject-matter of the investigation decided upon and the place where and date on which that investigation will be carried out. Finally, the second Paragraph of Article 3 of the decision indicates the possibilities of instituting proceedings before the Court of Justice against such a decision in accordance with Article 173 of the treaty.

27. In view of these factors, it follows that the contested decision fulfils the requirements laid down in Regulation No 17 as regards the statement of the reasons upon which it is based and that it is necessary to dismiss this submission as unfounded.

(d) The violation of the principle of proportionality

28. The applicant Points out in addition that the principle of proportionality, as established by the case-law of the Court of Justice, implies that a decision ordering an investigation adopted without the preliminary procedure may only be justified if the situation is very grave and where there is the greatest urgency and the need for complete secrecy before the investigation is carried out. It Points out, finally, that the contested decision violates such a principle by not indicating in the statement of the reasons upon which it is based that any of those facts exists.

29. The Commission's choice between an investigation by straightforward authorization and an investigation ordered by a decision does not depend on the facts relied upon by the applicant but on the need for an appropriate inquiry, having regard to the special features of the case.

30. Considering that the contested decision aimed solely at enabling the Commission to collect the necessary information to appraise whether there was any infringement of the treaty, it does not therefore appear that the Commission's action in this instance was disproportionate to the objective pursued and therefore violated the principle of proportionality.

31. For all these reasons, since this last submission cannot be accepted either, it is necessary to dismiss the application as unfounded.

32. Under Article 69 (2) of the rules of procedure, the unsuccessful party should be ordered to pay the costs.

33. Since the applicant has failed in its submissions, it must be ordered to pay the costs.

THE COURT

Hereby :

1. Dismisses the application as unfounded ;

2. Orders the applicant to pay the costs.