On 14 November 2012, the General Court partly annulled two of the Commission's inspection decisions that provided the legal basis for unannounced inspections at the following two companies Nexans and Prysmian. Both companies are active in the electric cables sector. The judgments are especially noteworthy, because it is the first time the Court rules that the Commission cannot use an inspection decision to search premises for documents relating to all company activities. The inspection must be limited to those activities where there is a suspicion of an infringement. Below we will discuss the Nexans case (Case T-135/09). The Court essentially reached the same conclusion in the Prysmian case (Case T-140/09).
In January 2009, the Commission issued a decision according to which Nexans was required to submit to an inspection. The inspection decision referred to all electric cables and all the material associated with those cables, including, amongst others, high voltage underwater electric cables and high voltage underground electric cables. Nexans challenged the Commission's inspection decision, stating that the inspection decision was too vague and that the Commission did not have reasonable grounds to suspect that there had been a competition law infringement relating to all electric cables.
In its judgment the Court first of all ruled that by referring to all electric cables and all the material associated with those cables, the Commission had met its obligation to define the subject-matter of its investigation. The Court held that Nexans was able to assess the scope of its duty to cooperate and that it should have understood that it was in principle required to provide all information regarding all electric cables and all the material associated with such cables.
However, the Court found that in order to adopt the inspection decision, the Commission was required to have reasonable grounds to justify an inspection covering all the activities by Nexans relating to the electric cables and the material associated with such cables. The Court concluded that the Commission had not demonstrated that this was the case, except for high voltage underwater cables and underground electric cables. Therefore, the Court partly annulled the inspection decision.
The consequences of the partial annulment of the inspection decision remain unclear. It is however likely that the documents the Commission retrieved from the inspection that relate to products other than high voltage underwater cables and underground electric cables, cannot be used as evidence to establish that an infringement has been committed.
Nexans also contested the legality of the Commission copying certain computer files and requesting explanations from an employee. The Court however ruled that these acts are regarded as measures implementing the inspection decision and cannot be seen as appealable decisions. Consequently, the applications for annulment relating to these acts were declared inadmissible. Furthermore, the Court reiterated that the review of how an inspection has been conducted can be put forward in an appeal against the final fining decision.