Judgment of the General Court (Ninth Chamber, Extended Composition) of 5 October 2020

1. CompetitionAdministrative procedureCommission’s power of inspectionRight to an effective remedySystem of legal remedies satisfying conditions of effectiveness, efficiency, certainty and reasonable time

(Arts 263, 268, 277, 278 and 340 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Rules of Procedure of the General Court, Art. 157(2); Council Regulation No 1/2003, Art. 20(1) and (4))

(see paras 54-79)

2. CompetitionAdministrative procedureObservance of the rights of the defencePossibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objectionsObligation on the Commission to inform the undertaking of the subject matter and purpose of the inspection at the stage of the first measure taken against it

(Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 1/2003, Art. 20)

(see paras 81-97)

3. CompetitionAdministrative procedureCommission’s power of inspectionDecision ordering an inspectionObligation to state reasonsScopeSpecification in the inspection decision of evidence that the Commission has sufficiently strong evidence for suspicion of infringementObligation to disclose that evidenceAbsence

(Art. 296 TFEU; Council Regulation No 1/2003, Art. 20(4))

(see paras 107-112, 120-125)

4. CompetitionAdministrative procedureCommission’s power of inspectionDecision ordering an inspectionObligation to state reasonsScopeObligation to indicate precisely the suspected infringement periodAbsence

(Art. 296 TFEU; Council Regulation No 1/2003, Art. 20(4))

(see paras 127-129)

5. CompetitionAdministrative procedureCommission’s power of inspectionRight to inviolability of the homeDecision ordering an inspectionObservance of the principle of proportionalityDuration of the inspectionDuty to act within a reasonable timeAssessment a posteriori

(Charter of Fundamental Rights of the European Union, Art. 7 and Art. 52(1) and (3); Council Regulation No 1/2003, Art. 20(4))

(see paras 158-162)

6. Judicial proceedingsTime limit for producing evidenceProduction of evidence after the expiry of the time limit for replying set by a measure of organisation of procedureRequirement of valid justification for the delayAbsenceInadmissibility

(Rules of Procedure of the General Court, Art. 85(1) and (3))

(see paras 175-183)

7. CompetitionAdministrative procedureCommission’s power of inspectionRight to inviolability of the homeObligation on the Commission to have sufficiently strong evidence for suspicion of infringementForm of evidence justifying the decision to inspectFailure to open an investigation before the inspection decisionInterviews prior to the opening of the investigationObligation to record or formally to transcribe those interviewsAbsence

(Council Regulation No 1/2003, Art. 19(1); Commission Regulation No 773/2004, Art. 3(1) and (3))

(see paras 190-218)

8. CompetitionAdministrative procedureCommission’s power of inspectionRight to inviolability of the homeObligation on the Commission to have sufficiently strong evidence for suspicion of infringementSubmitters of evidence which justified the inspection decisionSupplier having close links with the presumed perpetrators of the infringementWhether permissible

(Council Regulation No 1/2003, Art. 20(4))

(see paras 220-232)

9. CompetitionAdministrative procedureCommission’s power of inspectionRight to inviolability of the homeObligation on the Commission to have sufficiently strong evidence for suspicion of infringementTenor of the evidence justifying the decision to inspectRules of evidence specific to concerted practicesConsequenceThreshold for recognition of the Commission having sufficiently strong evidence lying below that necessary to a finding of a concerted practice

(Council Regulation No 1/2003, Art. 20(4))

(see paras 233-242)

10. CompetitionAdministrative procedureCommission’s power of inspectionRight to inviolability of the homeObligation on the Commission to have sufficiently strong evidence for suspicion of infringementTenor of the evidence justifying the decision to inspectExchange of information between competitorsPublic informationLack of sufficiently strong evidenceInfringement of the right to inviolability of the home

(Council Regulation No 1/2003, Art. 20(4))

(see paras 264-281)

Re:

Application based on Article 263 TFEU for annulment of Commission Decision C(2017) 1056 final of 9 February 2017, ordering the applicant and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (Case AT.40466 – Tute 1).

Operative part

The Court:

1. Annuls Article 1(b) of Decision C(2017) 1056 final of 9 February 2017, ordering Intermarché Casino Achats and all companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(1) and (4) of Council Regulation (EC) No 1/2003 (Case AT.40466 – Tute 1);

2. Dismisses the action for the remainder;

3. Orders Intermarché Casino Achats, the European Commission and the Council of the European Union each to bear their own costs.