In December 2010, the Commission opened an investigation against several operators in the cement market. They were suspected of imposing restrictions on trade flows in the European Economic Area through several anti-competitive practices. On 30 March 2011, the Commission sent them compulsory requests for information based on Article 18 § 3 of Regulation No. 1/2003.
Several companies brought actions for annulment before the General Court to contest the workload imposed by the Commission, which they deemed to be disproportionate considering the volume of information requested and the format of the response requested, without appropriate justification. Such criticisms are regularly addressed to the Commission when it sends this type of request: the questions are too broad and intrusive, the statement of reasons is inadequate and infringes the rights of defense of the concerned parties.
The General Court confirmed the Commission’s requests on 14 March 2013. Then the companies appealed the decision before the Court of Justice. In the end, the CJEU reversed the General Court’s decision, stating that the Commission’s decisions are not adequately justified.
The judges pointed out that it is not necessary in such a request to precisely define the relevant market, to provide the exact legal nature of the presumed infringements, or to indicate the exact period during which those infringements would have been potentially committed. Indeed, the aim of those requests is precisely to clarify these different elements. Furthermore, this obligation would undermine the effectiveness of the Commission’s investigation. However, the Commission has the obligation to state “clearly the suspicions which it intends to investigate”.
In the different decisions, the Court adopts an “in concreto” approach. First it notes that the decision does not disclose “clearly and unequivocally” the suspicions of infringements, or the reasons why the requests would be necessary. It observes that the Commission’s questions are numerous (between 78 and 94 pages) and cover a broad range of activities over a long period. Besides, the Commission had already sent several requests for information to those companies and carried out inspections on several premises of the companies. Thus the European Competition Authority already had information that would have enabled it to detail its suspicions further.
The Court concluded that the Commission’s statement of reasons is inadequate and that this inadequacy cannot be offset by the circumstances at stake. Therefore, the Commission’s decision on requests for information is annulled.