Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

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Judgments from General Court (Ninth Chamber Extended Composition) of 5th October 2020: T – 249/17, Casino, Guichard-Perrachon et Achats Merchandises Casino SAS (AMC)/Comission, T- 254/17, Intermarche Casino Achats/Comission e T- 255/17, Les Mousquetaires e ITM Entreprises/Comission

Competition – Administrative Procedure – Decision ordering an inspection– Illegality of Article 20 of Regulation (CE) n.º 1/2003 – Right to an effective remedy – Principle of equality of arms – Obligation to state reasons for the inspection decisions – Right to inviolability of the home – Sufficient strong evidence – Proportionality – Refusal to protect the confidentiality of data relating to private life

Facts

After receiving information about the existence of change of information between several undertakings and associations of undertakings from the food and non-food distribution sector the Commission in the scope of the powers conferred by Article 20, paragraphs 1 and 4 of Regulation (CE) no 1/2003 adopted, in February 2017, several decisions requesting inspections to several undertakings.

Within the scope of those inspections, Commission visited the undertakings offices and obtained copies of the IT records.

The undertakings Casino, Guichard-Perrachon, Achats Merchandises Casino SAS, Intermarché Casino Achats and Les Mousquetaires and ITM Entreprises, having reservations about the inspections’ decisions, brought actions seeking the annulation of these decisions. They alleged the illegality of Article 20 of Regulation (EC) no 1/2003, the violation of the obligation to state reasons for the inspections and the right of inviolability of the home.

Decision

The General Court (GC) annulled in part the Commission’s inspection decisions.

First, the GC rejected the allegation of illegality of Article 20, paragraphs 1 and 4 of Regulation (EC) no 1/2003, which establishes the general power to proceed to inspections as well as the undertakings’ obligations to be subject to those inspections. In particular, concerning the allegation of disregard of the right to an effective remedy, the GC concluded that all the legal remedies that exist at the applicant’s disposal to challenge the Commission decision are sufficient. Furthermore, the GC considered that the system of control complied with the four requirements foreseen in the case-law of the European Court of Human Rights, namely the existence of an effective judicial review of the facts and of points of law; the possibility for an individual to obtain an appropriate remedy where an unlawful act has been adopted; the effectivity of access to proceedings and judicial review within a reasonable time were respected. In this sense, the GC considered that the right to an effective remedy was respected.

Moreover, the GC rejected the plea of alleged violation of the principle of equality of arms and the rights of defence submitted by the applicants in cases T-249/17 e T-254/17.  Applying the well established case-law, the GC underlined that the Commission is not obliged to indicate specific evidence that justifies the inspection of an undertaking suspected of anticompetitive practices.  This is so in order to preserve the effectiveness of the investigation and the rights of defence of the undertakings.

Concerning the violation of the obligation to state reasons of the inspection decisions, the GC rejected this allegation since it found that the Commission considered that the Commission had its disposal sufficient and solid evidence to be able to suspect anticompetitive practices.

Concerning the plea alleging the right to inviolability of the home, the GC recalled that, in order to guarantee that inspection decisions are not arbitrary, it is necessary to verify if the Commission had at its disposal sufficient and solid evidence enabling it to suspect anticompetitive practices. With regard to the content of the evidence, which justified the inspection decisions, the GC considered that the Commission had indeed, in the present cases, sufficient evidence to establish a suspicion of a concerted practice related to exchanges of information on discounts obtained on the supply markets of certain everyday consumer products as well as on the prices of sale of services to manufacturers of branded products. However, because of the lack of sufficient evidence demonstrating the existence of exchanges of information concerning future commercial strategies of the undertakings in question, the GC upheld the plea alleging infringement of the right to the inviolability of the home as regards that second infringement and therefore partially annulled the Commission decisions relating to the inspections.

Finally, as regards to the complaint presented in case T-255/17, about the legality to seize relevant data concerning the private life of the employees or managers, as well as the subsequent refusal to return those data, the GC declared it inadmissible. The GC underlined that, since the applicants did not submit a previous request for protection related to that data, the seizure of the material and copying did not give rise to the adoption of a decision, which could be challenged. In addition, the GC stated that the request for return of private data was not made in sufficiently precise terms, and therefore the Commission was not able to adopt a decision, which meant that the defendants eventually did not have, at the time of this procedure, a decision which could be challenged.