On 18 June 2015, the Court of Justice rendered its judgment on appeal in Deutsche Bahn. The Court of Justice partly set aside the judgment of the General Court ("GC"). Contrary to the GC, the Court of Justice determined that the Commission unlawfully seized documents unrelated to the subject-matter of the inspection.

In 2011, the Commission adopted three decisions, each ordering an inspection of the premises of Deutsche Bahn ("DB") and several of its subsidiaries. During the first inspection, the Commission discovered documents possibly indicating anti-competitive behaviour by DB subsidiary DUSS that was not covered by the subject-matter of the inspection decision.

Although unrelated to the subject-matter of the inspection, the Commission seized these documents. It argued that this was not prohibited, since the documents were discovered fortuitously. The Commission thereby referred to the exception allowed by the Court of Justice in Dow Benelux v Commission (C-85/87). Subsequently, the Commission adopted the second and third inspection decision, predominantly based on the out of scope documents seized in the course of the first inspection.

DB brought actions against the Commission before the GC for the annulment of the three inspection decisions. It contended, among others, that its right to the inviolability of private premises was infringed. The GC rejected the argument and concluded that all safeguards protecting this right were met [see our October 2013 newsletter article].

DB further argued that its defence rights were violated as the Commission deliberately sought information concerning DUSS as opposed to discovering it fortuitously. This was substantiated by the fact that the Commission apprised its officials of suspicions regarding DUSS before the first inspection. The GC rejected this argument and stated that it regarded this information as general background information provided for valid reasons.

On appeal, the Court of Justice followed the latter argument made by DB and annulled the second and third inspection decision. It stated that the first inspection was vitiated by irregularity since the Commission officials, being previously in possession of information unrelated to the subject-matter of that inspection, proceeded to seize documents falling outside the scope of the inspection. No further action or consequences are expected to follow from the Court of Justice judgment as the Commission did not further pursue the allegation of infringements that were the subject matter of the inspection decisions annulled by the Court of Justice.

Recent judgments in Belgium and Spain showed that the annulment of inspection decisions may have far-reaching consequences. In the latter instance, ferry operator Transmediterránea saw its EUR 48.2 million fine imposed by the Spanish competition commission overturned due to a lack of evidence after exclusion of unlawfully seized documents.