Several companies have challenged the European Commission’s (“EC”) information gathering powers.

On 13 August 2011 details were published of Deutsche Bahn’s appeals against decisions of the EC to authorise dawn raids.  Deutsche Bahn’s claims include that:

  • that there was no opportunity for judicial review of the EC’s the decision prior to the dawn raids;
  • that the inspection was disproportionately wide and essentially a fishing expedition; and
  • that the inspection was disproportionate because the relevant issue had already been determined to be compatible for competition law.  A measure less invasive than a dawn raid, such as a request for information, could have been used to obtain the information.

Also on 13 August 2011, details were published of appeals brought by cement companies relating to decisions of the EC requiring production of information.  The cement companies’ claims differ, but include that that the EC:

  • required the companies to produce information which it knew they did not have;
  • required the companies to produce information which was not necessary for the investigation;
  • caused the companies to incur an excessive burden, including because the scope of the information requested was excessive, the data could only have been produced at an exorbitant cost, a very short time limit was imposed, and the information was required to be submitted in stated formats;
  • did not give sufficient reasons regarding the necessity and proportionality of the information; and
  • in its decision to require the information, used wording that was uncertain and imprecise.

The appeals raise questions about the extent of the regulator’s power to acquire information in dawn raids and to require the production of information.  Unlike in Australia, the EC has the power to both investigate matters and impose substantial pecuniary penalties.  In Australia, such penalties are imposed by the Federal Court.